WRG Acquisition, LLC v. Strasser

• Decision Date: 30 September 2014
• Docket Number: LT 002321-2013
• Citation: 994 N.Y.S.2d 827,45 Misc.3d 1010,2014 N.Y. Slip Op. 24288
• Court: New York District Court
• Parties: WRG ACQUISITION, LLC, Petitioner v. Andrew STRASSER, Respondent.

45 Misc.3d 1010

994 N.Y.S.2d 827

2014 N.Y. Slip Op. 24288

WRG ACQUISITION, LLC, Petitioner

v.Andrew STRASSER, Respondent.

LT 002321-2013

District Court, Nassau County, New York. First District.

Sept. 30, 2014.

David W. Graber, Esq., Attorney for Petitioner.

Jane Reinhardt, Esq., Nassau/Suffolk Law Services, Attorney for Respondent.

ERIC BJORNEBY, J.

Decision After Trial

For the reasons set forth below, the petition is granted and the petitioner is awarded a judgment of possession and a warrant of eviction, with a stay of execution through October 31, 2014.

This holdover proceeding was commenced in April 2013 to evict the respondent, Andrew Strasser, from 840 Shore Road, Apartment 4G, Long Beach, New York. The premises is rent stabilized and governed by the provisions of the Emergency Tenant Protection Act (ETPA). At trial, the petitioner's direct case was stipulated to by the respondent and testimony proceeded on respondent's claim to succession rights under the ETPA. The burden of proving such entitlement is on the respondent. (See 68–74 Thompson Realty, LLC v. McNally, 71 A.D.3d 411, 896 N.Y.S.2d 323 ) Some understanding of the history of the parties as well as the rules and regulations regarding rent stabilized housing is necessary to the Court's determination in this matter.

Respondent is a retired stock broker. He claims to have lived in the subject unit since 2006 when he moved in with his sister, Elizabeth Solosy, the tenant of record. He testified that he moved in at her request, as a live-in aide, because at 80+ years of age she could no longer care for herself. Mrs. Solosy renewed her lease several times between then and 2012 but never made the required disclosure of her brother's presence or income on the renewal forms for fear that it would increase her rent. He further alleges that, at his sister's request, he used another address, 719 East Park Avenue, Long Beach, New York and had all mail sent there. He also listed that other address for bank account, car loan, insurance, income tax and motor vehicle registration purposes, again, at his sister's request. From the outset of the trial both the respondent and his counsel repeatedly urged that this deception was harmless because he resided there as a live-in aide, (a term of art in subsidized housing parlance) and that disclosure of his presence therefore would not have affected her rent. It is not disputed that Mrs. Solosy never disclosed respondent's presence in the apartment to the appropriate housing authorities, though required by the applicable rules and regulations to do so.

Respondent offered the testimony of numerous witnesses including neighbors, family friends and relatives who testified that respondent lived in the apartment with his sister since 2006. They claimed to have seen him in the subject apartment, with his sister, on various occasions as well as in the neighborhood. In rebuttal, petitioner called two witnesses, Michelle Bieberman, who testified that she inspected the apartment in November 2010, as an employee of the managing agent, and that respondent was present but represented that he did not live there. Petitioner's second rebuttal witness was Robert Raphael, a member of petitioner, who testified that he visited the apartment on three separate occasions in 2011 and 2012 and conducted an inspection. He looked at the rooms, including the small room off the kitchen where respondent claims to have resided and testified that he observed no clothing, toiletries or personal effects to suggest that a male lived in the apartment with Mrs. Solosy. In view of the conflicting evidence, the court finds that the respondent has not met his burden to establish the necessary two year residence. In any event, even if the court were to find that the two year residence requirement was met, this would be insufficient to establish his claim to succession rights as will be further discussed below.

In 2012 hurricane Sandy struck and the building was evacuated for a time. After a few weeks, Mrs. Solosy determined that she would not return to her apartment and moved to Oklahoma to reside permanently with her daughter and her family. Mr. Strasser returned to the apartment and continues to reside there. Mr. Strasser claims to have entered into negotiations with the petitioner, on behalf of his sister, to obtain a cash payment for her in exchange for her surrendering the apartment in a vacant state. He claims that a $20,000 offer was rejected by his sister and that he was holding out for a $50,000 payment. He testified that in the end Mrs. Solosy wanted to be done with the matter and on her own accepted a $20,000 offer but that, against her wishes, he persisted in his demand for $50,000, utilizing this succession claim as leverage. In the end, she surrendered the apartment but received no payment because she could not deliver the apartment vacant since respondent refused to vacate it.

The requirement that all adult members of the household be disclosed, together with their income, insures that the total household income is correctly reported so that the correct amount of the rent can be computed. Supplying all such information regarding adult residents allows HUD to detect unreported income and correct the rent calculation. As noted by the Court of Appeals in Matter of Evans v. Franco, 93 N.Y.2d 823, 687 N.Y.S.2d 615, 710 N.E.2d 261 :

On this record, it is clear that petitioner was never certified by the NYCHA as a family member. Given the 13 unequivocal annual statements by the deceased that she lived in the apartment alone, there is no basis on this record to conclude that petitioner is a family member or that a hearing is necessary to confirm his status. To permit petitioner to claim status as a surviving family member would be to open the door to possible fraudulent claims and to a wholesale disregard of the intent of the subsidy program.

The court is required to enforce the rules and regulations regarding federally subsidized housing so as to insure that such housing is only provided to those who meet “specified eligibility requirements.” (Matter of Schorr v. New York City DHPD, 10 N.Y.3d 776, 857 N.Y.S.2d 1, 886 N.E.2d 762 ) The goal of such rules and requirements is to strike “a balance among various competing policies, including the interests of those on the long waiting lists for housing as well as those family members who have actually lived with a tenant and whose income was properly reported during such time so as to arrive at a fairly allotted rent.” (Matter of Meyers v. New York State Division of Housing and Community Renewal, 68 A.D.3d 1518, 892 N.Y.S.2d 587 ) To ignore the mandate that all occupants be listed on each annual re-certification so that petitioner may have a clear and accurate understanding of the household income would simply gut the deterrent value of the rules requiring such disclosure. (Matter of Perez v. Rhea, 20 N.Y.3d 399, 960 N.Y.S.2d 727, 984 N.E.2d 925 ) Rules without consequences for their violation only invite abuse and non-compliance. (Matter of Auguste v. Wambua, 107 A.D.3d 607, 968 N.Y.S.2d 478 ; Matter of Cruz v. New York City Housing Authority, 106 A.D.3d 631, 966...