NSA North Flatbush Associates v. Mackie

• Decision Date: 10 July 1995
• Citation: 166 Misc.2d 446,632 N.Y.S.2d 388
• Parties: NSA NORTH FLATBUSH ASSOCIATES, Petitioner, v. Lamont MACKIE, "John Doe" & "Jane Doe", Respondents. -G
• Court: New York City Court

Page 388

632 N.Y.S.2d 388

166 Misc.2d 446

NSA NORTH FLATBUSH ASSOCIATES, Petitioner, v. Lamont MACKIE, "John Doe" & "Jane Doe", Respondents.

Civil Court of the City of New York,

Kings County, Housing Part 18-G.

July 10, 1995.

Rappaport, Hertz, Cherson & Rosenthal, P.C. Forest Hills, for petitioner (Rhonda L. Gaynier, of counsel).

John C. Gray, Jr., Brooklyn Legal Services Corp. B, Brooklyn, for respondent Lamont Mackie (Matthew D. Brinckerhoff, of counsel).

MARC FINKELSTEIN, Judge:

Petitioner, NSA North Flatbush Associates, commenced this holdover proceeding to recover possession of the premises, 142 St. Paul's Place, Apartment 1E (the "Apartment") on the ground that the respondent, Lamont Mackie, occupies the apartment pursuant to a license which expired upon the death of the tenant of record, Jacob Mackie. Respondent alleges that he is the deceased tenant's son who resided in the Apartment for a period of some twenty months prior to his father's death on September 26, 1993, and that he is therefore a "remaining family member" entitled to succession rights.

A trial of this matter was conducted on December 2, 1994 and January 12 and 27, February 27, and March 2, 3 and 14, 1995. Both sides were represented by counsel. During the course of trial, respondent withdrew his motion to dismiss made at the close of petitioner's case as well as all of the numerous personal and subject matter jurisdictional defenses and affirmative defenses raised in his answer, except for his second affirmative defense.

As a result, the sole remaining issue for this Court to determine is whether respondent has proven that he is a remaining family member entitled under federal law to succeed to the Section 8 tenancy rights of his deceased father. Both sides have submitted post-trial summations and memoranda of law on this issue. ¹

The Apartment is subject to the United States Department of Housing and Urban Development ("HUD") Section 8 Housing Assistance Program for Substantial Rehabilitation, pursuant to 42 U.S.C. §§ 1437(a), 1437(c), 1437(f), 3535(d) and 24 CFR § 881. The tenant of record, Jacob Mackie, was a participant of the Section 8 Federal rent subsidy program of the United States Housing Act of 1937 (42 U.S.C. § 1437).

Under Section 8 of the revised United States Housing Act of 1937, 42 USCA § 1437 et seq., the "term 'families' includes families consisting of a single person in the case of ... (iv) the remaining member of a tenant family...." 42 U.S.C.A. § 1437a(b)(3)(A). The federal regulations promulgated by HUD contain identical language. " 'Family' includes but is not limited to-- ... (b) The remaining member of a tenant family,...." 24 CFR § 812.2 (1992).

Both sides agree that the term "remaining member of a tenant family" is not further defined by statute or regulation. In addition, the federal regulations are silent as to succession rights. See, Church Home Associates v. Bostick, NYLJ, September 19, 1990, p 22, col 6 (Civ Ct, NY County). Further, the Federally subsidized housing herein is not under direct control of local agencies such as Division of Housing and Community Renewal (DHCR), the New York City Housing Authority (NYCHA) or the Department of Housing Preservation and Development (DHPD).

Despite that the housing is not under local agency control, petitioner's position is that in order to establish succession rights to this Section 8 apartment, "the Respondent bears the burden of proving that he resided in the subject premises as his primary residence for at least two (2) consecutive years immediately prior to the tenant of record's death." (emphasis added). In the absence of Federal law defining "remaining member of a tenant family" and governing succession rights, petitioner seeks to impose an automatic two year requirement as found in analogous state and local laws. ² Application of such a rule in this proceeding would preclude respondent from seeking protection from eviction as a remaining family member under federal law since he himself argues that he resided with his father in the Apartment as his primary residence for only some twenty (20) months prior to his father's death.

Petitioner cites Morrisania II Associates v. Harvey, 139 Misc.2d 651, 527 N.Y.S.2d 954 (Civ.Ct., Bx County 1988), one of the leading cases in this area, as authority for its position. While the Morrisania court held that "Congress did not intend to completely preempt the application of State landlord-tenant law to covered accommodations and their occupants" (at 658, 527 N.Y.S.2d 954), and that "in the absence of controlling Federal interpretation, the court may seek guidance from analogous local standards," the court was also careful to note that it could do so only "if [local standards] are consistent with the Federal purpose, and do not limit rights secured by Federal law." (at 656 n. 1, 527 N.Y.S.2d 954) (emphasis added).

Thus, Morrisania does not provide authority for this Court to apply the two year co-residency requirements of state and local regulations to the respondent herein because to do so would limit his rights as a remaining family member secured under federal law. As Morrisania held in the same footnote as cited above (at 656 n. 1, 527 N.Y.S.2d 954), "the rights of Section 8 occupants are independently rooted in federal law." Also, to impose such a two year rule would be contrary to the Federal purpose of Section 8:

In sum, section 8 guarantees continued protection to every legitimate member of the family unit in occupancy. It recognizes that no such family member should suffer eviction, dislocation and homelessness upon the death of the tenant of record. It is thus consistent with the original ameliorative purpose of the United States Housing Act of 1937, the comprehensive legislation of which section 8 forms a part. (citation omitted).

Morrisania II v. Harvey, 139 Misc.2d at 657, 527 N.Y.S.2d 954.

Nothing in the Federal law addresses the issue of precisely how long a family member must co-reside with the tenant of record so as to establish rights as a remaining family member. Petitioner has not cited any Section 8 or related case in which a two year co-residency rule has been imposed. Rather than creating a two year or any other "bright line" duration of co-residency requirement, the courts have decided each case on an individual basis where duration of residency is a factor. In fact, Morrisania itself does not establish any set time duration:

['Remaining member of a tenant family'] should be defined according to the ordinary and natural meaning of its own words, as a person who had actually been in occupancy as a part of the family unit at the time of the named tenant's death. Its use recognizes an underlying statutory assumption: all family members have occupancy rights which are not terminated by the death of any member.

The Morrisania court noted, however, that

one who assumed occupancy just before the tenant's death, with no purpose other than that of succeeding to the tenancy, is not so protected.

Morrisania II v. Harvey, 139 Misc.2d at 656, 527 N.Y.S.2d 954.

Not only have courts not established any "bright line" duration of co-residency test, but numerous Section 8 succession rights cases in addition to Morrisania have concluded that a co-residency period of less than two years is deemed sufficient to establish remaining family member status. Applicable case law requires that in order for family members to gain succession rights, they must establish a bona fide co-occupancy of suitable duration. ³ Church Home Associates v. Bostick, supra ("more than a short period of time" sufficient); Academy Gardens Associates v. Rivers, L & T Index No. 82259/85 (Civ.Ct., Bx. County, June 4, 1987), n.o.r. (approximately one year sufficient); Judge Gilbert Ramirez Housing Development Fund Co. v. Sutton, L & T Index No. 45105/86 (Civ.Ct., Bx. County, June 11, 1986) (18 months sufficient); Venango Associates v. Sebrell, LT: 86-12-02-00162 (Phila. County Mun.Ct., Pa., April 28, 1987) (eight months sufficient).

At trial, respondent offered substantial documentary evidence and testimony in support of his contention that as a result of his bona fide co-occupancy he is entitled to succeed to the Apartment. Lamont Mackie testified that he is the son of the deceased tenant of record, and produced a certified copy of his birth certificate in support of this claim. He testified that before his incarceration in January 1990, and before his father took possession of the Apartment in June 1990, he and his father lived together at a different address. Respondent testified that he was incarcerated from January 1990 to early February 1992 when he was released on parole to the Apartment to reside with his father. This testimony was confirmed by certified copies of Department of Parole ("DOP") records. ⁴

DOP and Department of Labor ("DOL") records indicate that respondent was employed from March 1992 (shortly after his release to the Apartment) to November 1992, and from April to May 1993. DOL records indicate that respondent received unemployment benefits at the Apartment from November 1992 to April 1993, and from August to December 1993. Department of Social Services ("DSS") records indicate that respondent received public assistance benefits at the Apartment for a short time in early 1992, as well as from May 1993 until the date of trial.

Respondent offered evidence and testimony that at least once monthly surprise home visits were made by DOP personnel who verified respondent's residence at the Apartment. Parole Officer Mark Parker testified that in compliance with DOP policy these home visits were made from February 1992 to May 1993 and from August 1993 to November 1993. Officer Parker testified and records show that he personally made at least nine unannounced visits to the Apartment between June 1992 and February 1993 for the express purpose of verifying respondent's residence. Officer Parker further...