Sunset Hous. Assoc. v. Caban

• Court: New York Civil Court
• Citation: 190 Misc.2d 343,737 N.Y.S.2d 778
• Parties: SUNSET HOUSING ASSOC., Petitioner,<BR>v.<BR>ANITA CABAN et al., Respondents.
• Decision Date: 08 November 2001

190 Misc.2d 343
737 N.Y.S.2d 778

SUNSET HOUSING ASSOC., Petitioner,
v.
ANITA CABAN et al., Respondents.

November 8, 2001.

Brooklyn Legal Services Corp. B (John G. Gray of counsel), for Rigoberto Jimenez, respondent.

Gutman, Mintz, Baker & Sonnenfeldt, P.C., New Hyde Park (Russell Polirer of counsel), for petitioner.

OPINION OF THE COURT

GARY F. MARTON, J.

The issue in this summary holdover proceeding is whether

[190 Misc.2d 344]

respondent Rigoberto Jimenez may succeed to the possession of certain premises the rent for which is partially paid by a "project-based" section 8 federal subsidy.^[1]

Petitioner alleges (1) that the tenant of record, Anita Caban, no longer occupies the apartment, (2) that in violation of the lease and applicable regulations, Caban assigned or sublet the apartment to Jimenez, (3) that Caban filed annual certifications of income and household composition that were materially false because they failed to list any other occupants of the apartment and their incomes, and (4) that Caban's tenancy has been properly terminated and that Jimenez has no right to remain at the premises. Jimenez asserts (1) that he is Caban's nephew, (2) that he lived with her from 1996 until she moved out in 2000, and (3) that as a result he is a remaining family member entitled to succeed to her possession of the apartment.

By counsel, Jimenez has moved for summary judgment dismissing this proceeding. Petitioner, also by counsel, by what is denominated a notice of motion, has cross-moved for a judgment of possession, rent arrears, and use and occupancy. Neither Caban nor any other respondent has appeared herein. As set forth below, petitioner's motion is granted in part and respondent's motion is denied.

It is undisputed that Caban became a tenant of the premises in 1980 pursuant to a written lease with petitioner and that she moved out on August 9, 2000. Jimenez asserts that in late 1996 he was evicted from his apartment in Brooklyn, New York, while he was hospitalized, and that upon his discharge in December 1996, having nowhere else to go other than a homeless shelter, he accepted Caban's invitation to stay with her in her apartment. Jimenez alleges that he never told petitioner that he was living in the apartment because he feared that doing so would lead to their eviction. Jimenez alleges as well that he believes that Caban never told petitioner that Jimenez was living with her because she too believed that doing so would lead to their eviction.

[190 Misc.2d 345]

Petitioner denies that Jimenez lived in the premises before July 2000 and contends that he is not a remaining member of Caban's family. This denial is supported by (a) an affidavit of one of petitioner's employees, who states that since early in 1999, she has worked five days a week at the building in which the premises is located, that she is familiar with all of the occupants of the building, and that she never saw Jimenez before July 2000, and (b) Caban's conceded failure, when filing required section 8 certifications, to list Jimenez as an occupant of the apartment.

It is also undisputed that Jimenez applied to the New York City Housing Authority (NYCHA) for an apartment. In the application, which is dated May 19, 1999, he states that he had been living in Caban's apartment since November 1997. He also states that "Applicant sleeps on a couch in his aunt's apartment. He cannot continue to stay there because the landlord is unaware that she has anyone staying there and he could be thrown out at any time," and that "Applicant currently stays temporarily with his 76 year old aunt who is quite ill and has home care. He cannot continue to stay there and is in danger of being thrown out."

Respondent's Motion

Jimenez argues that an occupant of an apartment that receives a section 8 "project-based" subsidy may succeed to possession of the apartment upon the permanent departure of the tenant of record if, among other things, the occupant proves that he was a remaining member of the tenant's family. Citing, among other cases, Greene Ave. Assoc. v Reape (182 Misc 2d 379 [Civ Ct, Kings County 1999]) and Tri-Block Assoc. v Reid (NYLJ, May 3, 2000, at 30, col 6 [Civ Ct, Kings County, Marton, J.]), Jimenez contends that the only issue is whether, under the totality of the circumstances, he lived with Caban as a family unit for more than a short period of time.

The court finds, assuming arguendo that respondent has invoked the applicable legal standard, that there is a disputed issue of material fact as to whether Jimenez met this test. On the moving papers, the trier of fact might find that Jimenez moved into Caban's apartment in either December 1996, or in November 1997, or in July 2000. In addition, although Jimenez avers that Caban cooked, shopped, and cleaned for him, this allegation is set out in a conclusory manner and, more significantly, it does not establish that there was any interdependence between the two or that they were committed to each other. Jimenez does not assert that they shared household expenses,

[190 Misc.2d 346]

or that they intermingled their finances, or that they shared holidays or birthdays or anything else. The court finds that Jimenez has not established as a matter of law that he resided in the apartment for more than a short period of time as a...