Re: Death in family. a case?????
Posted by richard on June 12, 2000 at 23:29:57:
In Reply to: Death in family. What to do about taking over apartment? posted by Afron on June 12, 2000 at 16:44:14:
Better get $5000 ready for a lawyer, you will need it because the Landlord will spend $10,000 to evict you.........
He doesnt want YOUR MONEY...he wants the APARTMENT! .nieces and nephews were eliminated in 1997 from sucession rights.UNLESS you
can prove that your girlfriend made that apartment her permenant
residence BEFORE JUNE 19 TH 1995........ You need checking accounts, bank statements driver license voting
card, any and all verification of her address before that date..... You have a right to stay in the apartment untill the lease
ends......... the estate will or could pay the rent.......but youd
better economize your life TODAY! And even if you get the apartment the landlord is under NO obligation
to upgrade anything......even if you offer to pay,, and if YOU upgrade
anything.....EVICTION BABY!
She has been there 5 years this is cutting it very close to the cutoff point.....
------------------------------------
Here is a recent case
2000 NYSlipOp 20207
707 N.Y.S.2d 285
MESROBE VARTARIAN, Petitioner
v.
KATHY BRADY, et al., Respondents.
Index No. L&T 95092/98
CIVIL COURT OF THE CITY OF NEW YORK NEW YORK COUNTY
DATED: July 6, 1999
APPEARANCES OF COUNSEL Chapman & Francis, L. L. P., New York City (Leslie Francis of counsel),
for
petitioner. Dennis Casey, New York City, for respondents.
OPINION OF THE COURT MAJORITY OPINION
BILLINGS, J.:
In this summary holdover proceeding petitioner seeks to evict
respondent- tenant Kathy Brady from 18 Abington Square, Apartment 1, in New York County, because she has not maintained the apartment as her primary residence. Petitioner seeks also to evict respondent-undertenant John Brady from
the apartment because he has not established any right to possession of the
apartment.
I. THE FACTS PRESENTED AND THE ISSUES RAISED AT TRIAL
A. Respondent Kathy Brady's Surrender of Possession of the Rent
Controlled Apartment
In 1949, Mesrob Vartanian, the named petitioner, identified in the
petition as "Mesrobe Vartarian," leased Apartment 1 at 18 Abington Square, a rent controlled apartment, to Peter Brady and his wife. Before 1992, their daughter,respondent Kathy Brady, succeeded to her parents' tenancy. At least since 1997,however, she has lived in Far Rockaway, New York, caring for her brother whosuffered a heart attack in 1997.
A tenant's need to care for an ailing relative does not, without more,
support the conclusion of a non-primary residence. Sutton Realty v. Vang, N.Y.L.J.,Mar. 12, 1992, at 25 (App. Term 1st Dep't). Here, the record included other indicators of Kathy Brady's residence with her ailing brother in Far Rockaway, such as bills and other mail to her at the Far Rockaway address, as well as a dearth of indicators that she retained any ties to 18 Abington Square. See Beth Israel Medical Center v. Matsil, N.Y.L.J., Nov. 21, 1991, at 26 (App. Term 1st Dep't); Sommer v. Ann Turkel, Inc., 137 Misc. 2d 7, 9-10 (App. Term 1st Dep't 1987); Emay Props. Corp. v. Norton, 136 Misc. 2d 127, 128 (App. Term 1st Dep't 1987); Michael Realty v. Sampietro, N.Y.L.J., Dec. 24, 1991, at 23 (Civ. Ct. N.Y. Co.). Thus Kathy Brady no longer occupies 18 Abington Square, Apartment 1, as her primary residence. See N.Y.C. Admin. Code §26- 403(e) (2) (i) (10). B. Respondent John Brady's Succession to Possession of the Rent
Controlled Apartment Respondent John Brady, Kathy Brady's nephew, resided with her at 18 Abington Square, Apartment 1, for at least two years during 1992 to 1997, until she ceased to maintain the apartment as her primary residence, and he continues to reside there. Thus, under the law in effect at least until 1997, John Brady lived with his aunt for the requisite two years to succeed to his aunt's possessory right to the apartment. 9 N.Y.C.R.R. §2204.6(d). A statutory amendment effective June 19, 1997, however, removed nephews from the definition of traditional family members entitled to succession rights. N.Y. Pub. Hous. Law §14(4). As John Brady established succession rights before the amendment's effective date, these circumstances raise the issue whether this amendment's retroactive effect is sufficiently limited to permit Mr. Brady to succeed his aunt as tenant.
Public Housing Law §14(4), referring to the New York State Division of
Housing and Community Renewal (DHCR), states that:
The agency shall promulgate regulations, rules and policies which
provide for the rights of family members to succeed in certain cases to the rights of tenants protected by . . . the local emergency housing rent control act, the administrative code of the city of New York and any regulations, rules and policies enacted pursuant thereto. Such regulations, rules and policies shall contain provisions which include, but shall not be limited to, the following:
(a) that . . . any member of the tenant's family, as defined in
paragraph (c) of this subdivision, shall succeed to the rights of a tenant under such acts and laws where the tenant has permanently vacated the housing accommodation and such family member has resided with the tenant in the housing accommodation as a primary residence for a period of no less than two years . . .immediately prior to the permanent vacating of the housing accommodation by the tenant . ... . . .
(c) that for the purposes of such regulations: (i) "family member"
shall be defined as a husband, wife, son, daughter, stepson, stepdaughter, father, mother, stepfather, stepmother, brother, sister, grandfather, grandmother, grandson, granddaughter, daughter-in-law, son-in-law, mother-in-law or father- in-law of the tenant; or any other person residing with the tenant in the housing accommodation as a primary residence who can prove emotional and financial commitment, and interdependence between such person and the tenant. (emphasis added) This statutory language is substantively identical to 9 N.Y.C.R.R. §2204.6(d), which has remained unchanged since before 1997, except the statute eliminates nieces, nephews, aunts, and uncles from the definition of "family members" eligible for succession.
The statutory language presents two threshold questions pertinent to
whether its definition or 9 N.Y.C.R.R. §2204.6(d)'s definition of family members applies to Mr. Brady. Is application of the new definition dependent on DHCR promulgating new regulations? Given that the regulatory definition need "not be limited to" the statutory definition, Pub. Hous. Law §14(4), is the current 9N.Y.C.R.R. §2204.6(d) a proper implementing regulation without change? If the answer to either question is affirmative, "family members" eligible for succession still include nieces, nephews, aunts, and uncles and, hence, John Brady.
Even if the answer to both questions is negative, and the statutory
definition supplanted the regulatory definition upon the statute's enactment, it does not apply retroactively to persons who established succession rights before June 19, 1997. The succession rights laws apply retroactively only to the extent they accomplish the legislation's remedial purposes. Although tightening the definition of family members may have been intended to remedy the adverse effects on landlords of the more expansive definition, the remedial purpose of
legislation governing rent control succession rights, as a whole, remains the
protection of tenants and their family members from eviction. Where a new law confers a tenancy right, the law is applied retroactively, but where it takes
away a right conferred by the old law, the new law is not applied retroactively.
Beary v. City of Rye, 44 N.Y.2d 398, 411-13 (1978); Morales v. Gross, 230 A.D.2d 7,14-15 (2d Dep't 1997).
Consequently, amendments to the rent control laws are not applied
retroactively when they would evict a tenant entitled to protection under the prior law. Gottlieb v. Licursi, 191 A.D.2d 256, 257 (1st Dep't 1993); 911 Alwyn Owners Corp. v. Rosenthal, 157 Misc. 2d 828, 830-31 (Sup. Ct. N.Y. Co. 1992), aff'd,190 A.D.2d 621 (1st Dep't 1993); 43-45 West 129th Street HDFC v. Doe, N.Y.L.J.,Mar. 2, 1992, at 31 (Civ. Ct. N.Y. Co.); Coleman v. Sillman, N.Y.L.J., Mar. 6, 1991, at 22 (Civ. Ct. N.Y. Co.). Since John Brady succeeded his aunt as tenant at 18 Abington Square, Apartment 1, under the law in effect before June 1997,Pub. Hous. Law §14(4) does not apply retroactively to deprive him of that
right.
C. The Owner's Right to Charge John Brady a Vacancy Allowance
As John Brady is a successor to Kathy Brady's interest in the
apartment, because Kathy Brady succeeded her parents, her nephew became a second successor tenant. Another statutory amendment effective June 19, 1997, entitles owners to charge a vacancy allowance to second successor tenants. N.Y.C. Admin. Code §26-403.2. Unlike the amendment removing nephews from the definition of traditional family members, the retroactive application of the new Admin. Code §26-403.2 is clear from the statute. It expressly applies only "where all tenants occupying the housing accommodation on the effective date of this section have vacated." Id. If John Brady already occupied the apartment by 1997, the vacancy allowance is unavailable until he vacates. It will apply only if a family member succeeds him and then "to each subsequent second succession." Id. D. Ownership of the Premises and Commencement of the Proceeding Upon the presentation of evidence establishing the following facts at the end of petitioner's case, however, respondents moved to dismiss the entire petition. From 1949 until his death in May 1998, Mesrob Vartanian owned 18 Abington Square. On June 17, 1998, Delfi Soto signed the notice terminating respondents' tenancy, and on August 24, 1998, he signed the petition. He signed both documents as petitioner's agent.
Robert Cancellare is the registered managing agent for the premises.
For at least the last eight years, he has been the managing agent on a "day-to-day" basis, Transcript of Proceedings at 12 (Jan. 26, 1999), in conjunction with Mesrob Vartanian's son, John Vartanian, who has managed the building for the last 15 years.
In Mesrob Vartanian's will of January 1996, he left the property to
John Vartanian and his two brothers and named John Vartanian executor of the estate. On November 30, 1998, the will was admitted to probate, and on December 1, 1998, letters testamentary were issued authorizing John Vartanian to
administer the estate. Respondents sought dismissal on the grounds that the petition had been brought in the name of a deceased person, and the notice of termination and the petition were signed by a person without authority. In response, petitioner's counsel moved to amend the petition to name the Estate of Mesrob Vartanian petitioner.
II. THE PETITION AND TERMINATION NOTICE MAY NOT BE AMENDED TO
NAME THE ESTATE
OF MESROB VARTANIAN PETITIONER AND TO BE SIGNED BY AN AGENT OF
THE ESTATE.
A. The Petition and Termination Notice Were Not Signed by a Person
Authorized to Initiate the Proceeding.
Although the evidence established ownership of the premises, it was not
by the named petitioner, who died before the proceeding was commenced. Even if
Delfi Soto, who signed the termination notice and petition as agent for the
deceased petitioner, was an authorized agent for that purpose when the deceased
was alive,
R.P.A.P.L. §741, the principal's death revoked the agent's authority to
act for the principal. Wisdom v. Wisdom, 111 A.D.2d 13, 14-15 (1st Dep't 1985); Hemphill v. Rock, 87 A.D.2d 836 (2d Dep't 1982). Any purported legal action on behalf of a decedent, absent appointment of an executor, administrator, or other party competent to represent the estate, is a nullity and subject to vacatur. Silvagnoli v. Consolidated Edison Employees Mut. Aid Socy., 112 A.D.2d 819, 820 (1stDep't 1985); Meagher v. ARA Serv., 242 A.D.2d 286, 287 (2d Dep't 1997);Macomber v. Cipollina, 226 A.D.2d 435, 436- 37 (2d Dep't 1996). The court may grant a motion to change the named petitioner to a
decedent's estate if, when the proceeding was commenced, the estate had a
representative competent to bring the proceeding. C.P.L.R. §2001; Rosenberg v. Caban,16 N.Y.2d 905, 906 (1965); McDonough v. Bonnie Heights Realty Corp., 249
A.D.2d 520, 521 (2d Dep't 1998); Kramer v. Twin County Grocers, 151 A.D.2d
722, 723 (2d Dep't 1989). In such a case, the representative could ratify nunc
pro tunc any prior action the representative or an agent for the estate had taken in prosecuting the proceeding. Carp v. Marcus, 114 A.D.2d 695, 696 (3d Dep't 1985);Wichlenski v. Wichlenski, 67 A.D.2d 944, 946 (2d Dep't 1979).
Here, John Vartanian did not become executor of the named petitioner's
estate until after the termination notice was served and the notice of
petition and petition were filed. The evidence did not otherwise indicate that he, Delfi Soto, or any other person was authorized to initiate litigation on behalf of the decedent's estate when this proceeding was commenced or that Delfi Soto was that person's agent. Manhanaim Resort Corp. v. Samples, 156 A.D.2d 342, 344 (2d Dep't 1989);Carp v. Marcus, 114 A.D.2d at 696; Hemphill v. Rock, 87 A.D.2d at 836-37;Gross v. New York State Teachers Retirement System, 81 Misc. 2d 964, 966-67(Sup. Ct. Albany Co.), rev'd on other grounds, 50 A.D.2d 980 (3d Dep't 1975).
In the absence of anyone to stand in for the deceased named petitioner,
a judgment by this court would be a nullity. Manhanaim Resort Corp. v.
Samples, 156 A.D.2d at 344; Estate of Agliata v. Agliata, 155 Misc. 2d 385, 388
(Sup. Ct. Erie Co. 1992). The court has no jurisdiction to conduct proceedings
commenced by persons without authority to act on behalf of the named petitioner
or his estate. Harding v. Noble Taxi Corp., 155 A.D.2d 265, 266 (1st Dep't 1989); Oberlander v. Levi, 207 A.D.2d 437, 438 (2d Dep't 1994); Bossert v. Ford Motor Co., 140 A.D.2d 480, 481 (2d Dep't 1988).
The "active participation of the parties in the litigation without
objection" may constitute a waiver of the right to object to unauthorized proceedings. Durrant v. Kelly, 186 A.D.2d 237, 238 (2d Dep't 1992). Here the basis for the objection emerged only at the conclusion of petitioner's case when petitioner's counsel proved that Mesrob Vartanian died before the proceeding was commenced,and John Vartanian's capacity as executor of Mesrob Vartanian's estate matured after the proceeding was commenced. Thus respondents' objection is timely.See Bauernfeind v. Albany Med. Center Hosp., 154 A.D.2d 754, 755 n. (3dDep't 1989).
B. The Termination Notice May Not Be Amended by Substituting an
Authorized Signature. Even were the court to permit the named petitioner to be replaced by the Estate of Mesrob Vartanian or the current owner, John Vartanian, the petition must be dismissed on other grounds. A valid notice of termination is a condition precedent to the proceeding. 170 West 85th Street Tenants Assn. v. Cruz, 173 A.D.2d 338, 339 (1st Dep't 1991). Such notices are not amendable; their defects may not be cured retroactively. Chinatown Apts. v. Chu Cho Lam, 51 N.Y.2d 786, 787 (1980). See also, e.g., First Fed. Sav. & Loan Assn. of Rochester v. Suoto, 158 Misc. 2d 219, 221 (Civ. Ct. N.Y. Co. 1993); Homestead Equities v. Washington, 176 Misc. 2d 459, 464 (Civ. Ct. Kings Co. 1998).
A notice of termination may be issued only by a person authorized "to
bind the landlord in the giving of such notice." Siegel v. Kentucky Fried
Chicken of Long Is., 108 A.D.2d 218, 220 (2d Dep't 1985), aff'd, 67 N.Y.2d 792 (1986). See also Linroc Enters. v. 1359 Broadway Assocs., 186 A.D.2d 95 (1st Dep't 1992). Delfi Soto, identified as the agent of a deceased person, signed the termination notice. The principal's death, however, terminated that agency. Soto had no authority to issue the notice unless when this proceeding was commenced, he was empowered to initiate eviction proceedings as the representative of the decedent's estate or as such a representative's agent. Manhanaim Resort Corp. v. Samples, 156 A.D.2d at 344. No such principal has been identified.
Thus, even were the court to permit a replacement by the named
petitioner, a condition precedent to the proceeding has not been satisfied. That condition may not be revived nunc pro tunc by adding a competent signer to the termination notice. Chinatown Apts. v. Chu Cho Lam, 51 N.Y.2d at 787. "Where a defective predicate notice has been served, the proceeding based thereon falls with the defective notice." First Fed. Sav. & Loan Assn. of Rochester v. Suoto, 158 Misc. 2d at 221. On this ground, the court must dismiss the petition. In sum, the termination notice and the petition suffer from non-amendable defects because they were signed and the proceeding thus commenced on behalf of a deceased person by a person not shown to have any authority to do so. Even if the petitioner could be changed to
the decedent's estate or to the new owner and the petition signed by
that party's authorized representative, the predicate notice may not be changed. N.Y.City Civ.Ct. 1999. Vartarian v Brady
END OF DOCUMENT ------------------------------------------------------ : My girlfriend and I were looking for an apartment for a while. At that time, she was living with an elderly aunt. Her aunt just passed about a week ago. Now, we are thinking about taking over the apartment. My girlfriend's name is not on the lease but she established legal residency there for 5 years. Here are my concerns: Her aunt was living in the apartment for over 40 years so the landlords didn't do much of a repair job or upgrading the apartment. The rent is about $280. How can we determine if we can get the apartment? What would we have to do? Also, how much can they legally raise the rent? And if they raise the rent, are they required by law to upgrade/repair apartment? I would like some new wiring and appliances. The ones in the apartment now are old. These are my main concerns now. I know the management will eventually find out that my girlfriend's aunt died. So we want to be honest and do what is right instead of hiding and waiting until they "catch" us.
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