Rochdale Village, Inc. v. Goode

Decision Date14 June 2007
Docket NumberNo. 2005-476 Q C,2005-476 Q C
Citation16 Misc.3d 49,842 N.Y.S.2d 142,2007 NY Slip Op 27249
PartiesROCHDALE VILLAGE, INC., Respondent, v. NATHANIEL GOODE, Respondent, and AUDREY CLEMONS, Appellant.
CourtNew York Supreme Court — Appellate Term

Appeal from order dismissed.

Final judgment reversed without costs and final judgment directed to be entered dismissing the petition.

The appeal from the intermediate order is dismissed because the right of direct appeal therefrom terminated with the entry of the final judgment (see Matter of Aho, 39 NY2d 241, 248 [1976]). The appeal from the final judgment brings the order up for review (see CPLR 5501 [a] [1]).

The issue we determine on this appeal is whether an occupant of a state-assisted Mitchell-Lama cooperative apartment who claims succession rights thereto may assert defenses in a nonpayment summary proceeding brought against the tenant of record and the occupant.

In a stipulation entered into on January 20, 2000 in settlement of a prior holdover proceeding, it was agreed that Nathaniel Goode, the adopted son of the deceased former tenant of record Corine Goode, had succession rights to the subject Mitchell-Lama cooperative apartment and that, when he attained the age of majority, he would be given a lease in his own name. The stipulation acknowledged that Audrey Clemons (appellant), who is Corine Goode's natural daughter, would reside with Nathaniel Goode in the apartment as his guardian. Nathaniel Goode attained the age of majority soon thereafter, and he was given a lease. Appellant alleges that she moved into the apartment with her brother in July 2000 and that she and her brother lived together in the apartment until March 2003 when her brother left the apartment without explanation. During this period, appellant was listed on all of the annual income affidavits. In the period thereafter, appellant continued to reside in the apartment, but landlord rejected the income affidavits submitted by appellant because they were not signed by Goode, and it commenced another holdover proceeding. While the record of this holdover proceeding is not before us, it appears that the proceeding was not successfully prosecuted to completion, and that landlord instead chose to institute this nonpayment proceeding, naming Goode as tenant and appellant as undertenant.

Goode defaulted in appearing, but appellant appeared and answered, and subsequently moved for summary judgment. Appellant asserted that she lived in the apartment as an authorized family member, that the rent notice was inaccurate and confusing, and that certain surcharges imposed by landlord based on the alleged failure to submit an income affidavit were improper. After her summary judgment motion was denied, appellant sought, at trial, to show that she had succession rights to the apartment and that she should be entitled to assert defenses to the nonpayment proceeding. However, the court did not allow appellant to fully develop her succession rights claim, holding that this claim was not a defense to the nonpayment proceeding. The court further ruled that only the tenant of record had standing to challenge the adequacy of the rent notice and the imposition of the surcharges. Accordingly, the court awarded possession to landlord.

We agree with the trial court that the fact that an occupant of an apartment may have succession rights is not a defense to a nonpayment proceeding. We also reject appellant's claim on appeal that she has established that she has succession rights. The regulations promulgated by the Division of Housing and Community Renewal governing succession rights in state-aided Mitchell-Lama housing are set forth in 9 NYCRR subpart 1727-8. These regulations provide, inter alia, that where the tenant of record has permanently vacated the apartment, a member of the tenant's family who has resided with the tenant in the apartment as a primary residence for the specified cooccupancy periods and who has been listed on the income affidavits, may request to be named as a tenant on the lease and on the stock certificate (9 NYCRR 1727-8.3). In the event of a denial by the housing company of the application, the family member may file an administrative appeal (9 NYCRR 1727-8.5).

The procedures governing succession rights in state-assisted Mitchell-Lama housing are substantially similar to those set forth in 28 RCNY 3-02 (p), governing city-assisted Mitchell-Lama housing. With respect to the latter, the courts have held that the Department of Housing Preservation and Development is vested with exclusive jurisdiction to determine remaining-family-member claims (Bedford Gardens Co., LP v Jacobowitz, 29 AD3d 501 [2006]; Brighton House v Novick, 2003 NY Slip Op 51201[U] [App Term, 2d & 11th Jud Dists 2003]). In view of the similarity between the two sets of regulations, the same rule of exclusivity of jurisdiction that is applied in city-assisted Mitchell-Lama housing should be applied in state-assisted Mitchell-Lama housing. Since appellant has not been determined to have succession rights in accordance with the procedure set forth in subpart 1727-8 of 9 NYCRR, her claim to succession rights cannot be deemed established at this juncture.

Nevertheless, it is our view that since appellant has established a colorable claim to such succession rights, she has standing to assert defenses to this nonpayment proceeding, at least to the extent of demonstrating that the statutory prerequisites to the proceeding (see RPAPL 711 [2]) have not been satisfied (RPAPL 743; see Glen Cove Hous. Auth. v Hendricks, 2002 NY Slip Op 40483[U] [App Term, 9th & 10th Jud Dists 2002]; 609 W. 151st St., LLC v...

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29 cases
  • Findlay House, Inc. v. Zhang Hongliu
    • United States
    • New York Civil Court
    • August 31, 2018
    ...149 [holding that DHPD has exclusive jurisdiction over succession claims in city-assisted Mitchell-Lama housing]; Rochdale Vil., Inc. v. Goode , 16 Misc.3d 49, 842 N.Y.S.2d 142 [App. Term, 2d Dept., 2d & 11th Jud. Dists. 2007] [holding that "in view of the similarity between the two sets of......
  • Parkash 2125 LLC v. Galan
    • United States
    • New York Civil Court
    • September 6, 2018
    ...other than the tenant of record may have standing to raise defenses to a nonpayment proceeding (see Rochdale Village, Inc. v. Goode , 16 Misc. 3d 49, 842 N.Y.S.2d 142 [App. Term, 2d & 11th Jud. Dists. 2007] [son of tenant of record who had "established colorable claim to succession rights" ......
  • Passarelli Family P'ship, LP v. Davis
    • United States
    • New York Civil Court
    • June 15, 2011
    ...the Three Day Notice to Tenant is defective as it demands more than the Petitioner is actually owed. Rochdale Village, Inc. v. Goode, 16 Misc 3d 49, 842 N.Y.S.2d 142 (N.Y.Sup.App.Term 2007). As proper predicate rent demand is a condition to commencement of a non-payment proceeding, it canno......
  • Oakwood Terrace Hous. Corp. v. Monk
    • United States
    • New York Supreme Court — Appellate Term
    • February 22, 2016
    ...must be dismissed as against both of them (see Priegue v. Paulus, 43 Misc.3d 135[A], 2014 N.Y. Slip Op 50662[U] ; Rochdale Vil., Inc. v. Goode, 16 Misc.3d 49, 53 [App Term, 2d & 11th Jud Dists 2007] ). Accordingly, the final judgment is reversed and the matter is remitted to the Justice Cou......
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