ADAM SEIDEN, J.
Morton Kaner, Esq., Novick & Kaner, P.C., New Rochelle, Attorneys for Petitioner.
Jeannine R. Cahill, Esq., Legal Services of the Hudson Valley, White Plains, Attorney for Respondent.
ADAM SEIDEN, J.
Petitioner commenced this holdover proceeding in November 2014 seeking to recover possession of the residential premises on the ground that respondent, Robyn Thomas, occupied the residence as a licensee and that the license had expired. Petitioner contends that Queen Sturdivant, the tenant of record, died and therefore, the respondent's license has expired.
A trial in this matter was held on April 16, 2015.
Nicole Watson testified on behalf of petitioner. Ms. Watson was the manager of the building in which the subject premises is located from 2008 to 2012. Ms. Watson testified that respondent's mother, Queen Sturdivant, lived in the subject premises which is a two (2) bedroom handicapped apartment. Mrs. Sturdivant was given that particular apartment because of her age and physical handicap as well as the fact that she also required a twenty-four (24) hour attendant to assist her. Ms. Watson further testified that neither Ms. Sturdivant nor respondent ever asked to have respondent live in the subject premises or be added to the lease. Ms. Watson left the premises as manager in August 2012.
Karen Krieger also testified on behalf of petitioner. Ms. Krieger became the site manager in August 2012. Ms. Krieger testified that no one ever spoke to her about respondent moving in with her mother and that she had no knowledge of respondent living with her mother. Ms. Krieger did note in her testimony that respondent was present to provide Ms. Sturdivant's re-certification documents to petitioner. Ms. Sturdivant died on June 22, 2014.
Respondent Robyn Thomas testified on her own behalf. Ms. Thomas testified that she asked to be put on the lease and she was told that she could stay in the apartment but would not be put on the lease. Ms. Thomas further testified that they had numerous keys to the apartment and that she parked in the parking lot with Ms. Krieger's permission. On cross-examination Ms. Thomas was confronted with a summons and her deposition in a negligence case she commenced against petitioner in March 2012 which was subsequently settled. During the deposition, Ms. Thomas testified under oath that at the time of the alleged accident on January 29, 2012 she was living at 42 Sheridan Avenue, Apt. 4B in Mount Vernon and that at the time of the deposition she was living at 200 Ludlow Street in Stamford, Connecticut. At no time during the deposition did she testify that she resided at the subject premises.
Chapter 3 of the HUD Handbook 4350.03 governs the eligibility for assistance and occupancy in relation to federally regulated Section 8 apartments. Section 3–16 delineates the requirements used in making a determination regarding the eligibility of a “remaining family member” to succeed to a housing subsidy. HUD Handbook 4350.3 Chapter 3–16(B) provides:
The following basic requirement for eligibility must be met for a person to qualify as a remaining family member of a household:
1.The individual must be a party to the lease when the family member leaves the unit.
2.The individual must be of legal contract age under state law.
3.The remaining family member is defined in Section 202 and 811 regulations as the surviving family member or members of an elderly family or family with disabilities that was a party to the lease and living in the assisted unit with the now deceased member of the family at the time of his or her death.
In Matter of Evans, 93 N.Y.2d 823 (1999), the Court of Appeals determined that respondent was not entitled to succeed to a housing subsidy as a “surviving family member” pursuant to the Section 8 program because for thirteen (13) years the deceased tenant of record unequivocally indicated that she lived alone in the apartment and only provided her own income on the re-certification statements. The Court specifically stated in its decision that “[t]o 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.” Id. at 824.
Although some courts have held that the absence of respondent's name from the re-certification and lease amendments does not bar a succession claim, it is clear from a review of those cases that the decisions were fact specific and were compelled by the courts' desire to render decisions that were based upon their inherent sense of justice rather than following the letter of the law. See Marine Terrace Associates v. Kesoglides, 44 Misc.3d 141(A) (2nd Dept 2014) (holding that absence of son's name on the lease and re-certification documents could not bar his succession claim where the unrefuted testimony showed that the landlord knew he lived in the apartment and had actively frustrated the deceased tenant and her son's repeated requests to add his name to the lease and re-certification documents); Bronx 361 Realty LLC v. Quinones, 26 Misc.3d 1231(A) (2010) (Civ Ct Bronx Cty 2010)(holding that widow of tenant of record was not barred from succession rights to apartment where she had attempted to be added to the lease prior to husband's death and was told repeatedly by the landlord that it was not a problem for her to take over the Section 8 lease).
Based upon the testimony and documents submitted by the parties the Court finds that respondent has failed to establish that she is entitled to succession rights to the subject premises. It is clear from the testimony and documents submitted that the petitioner was not on the lease at the time of Ms. Sturdivant's death. Moreover, it is also clear that neither respondent's alleged residence in the subject premises, nor her income information, was included on any of the annual re-certification documents. Additionally, although respondent claims that she was living with her mother for an extended period of time prior to her death, respondent's claims are refuted by the testimony of both of petitioner's witnesses and contradicted by respondent's own sworn deposition testimony in her prior negligence lawsuit against petitioner. Based upon the foregoing, respondent failed to establish her burden of proof, and therefore, is not entitled to succession rights in the apartment.
Judgment in favor of the petitioner. The warrant of eviction to issue forthwith.
This constitutes the Decision and Order of this Court.
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