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Succession issues

Postby TenantNet » Thu Apr 08, 2010 9:43 pm

Non-Traditional Family Member Wins Tenancy to Apartment
Noeleen G. Walder
New York Law Journal, April 7, 2010

A man whose relationships with his gay "soulmate" and his mate's mother formed "a loving and close-knit family" has convinced a judge that he should not be evicted from the rent-controlled Bronx apartment where he has lived for more than a decade.

After Michael Lorge was murdered on Valentine's Day 2009, the landlord of the apartment tried to regain control from Paul Garrison, who had lived there with Mr. Lorge and where the two had cared for Mr. Lorge's ailing mother.

Mr. Garrison resisted eviction, claiming the status of a "non-traditional" member of the Lorge household. He argued that he and Mr. Lorge had cared for Mr. Lorge's mother, Helen, the tenant of record, after her husband, Thomas, died and she suffered a series of strokes before she was placed in a nursing home.

Following a trial in Fleishman Realty Corp. v. Garrison, 27904/09, Bronx Housing Court Judge Jaya K. Madhavan (See Profile) concluded that Mr. Garrison "has spent the last 12 years of his life in the Apartment. During that time, he laughed, loved and grieved there with the Lorges. Sadly, Thomas Lorge died; Michael Lorge was murdered; and Helen Lorge was institutionalized. Although respondent has lost the only family he has ever known, he need not also lose his family home," the judge wrote in holding that the deceased Mr. Lorge and Mr. Garrison jointly succeeded to Ms. Lorge's tenancy when she vacated the apartment in 2003.

The Bronx Civil Court decision appears on page 28 of the print edition of today's Law Journal.

Mr. Garrison and Mr. Lorge first spoke on a phone chat line in 1995. In January 1998, Mr. Garrison moved from Pennsylvania to the $146-a-month, five-room apartment Mr. Lorge shared with his parents.

Two months after Mr. Garrison relocated, Mr. Lorge was arrested and wound up serving two years in prison for sexual assault, according to news reports.

Writing from prison, Mr. Lorge called Mr. Garrison his "soulmate" and looked forward to "the day that we are together forever."

Meanwhile, Mr. Garrison continued to live in the Bronx apartment, where he spent the bulk of his time with Ms. Lorge, whom he viewed as an adopted mother.

The two shared meals, watched "General Hospital" and "All My Children" together, and spent a couple of hours every day talking, the judge recounted. When Ms. Lorge's health took a turn for the worse, Mr. Garrison prepared meals for her and her husband.

After Mr. Lorge returned to the apartment, the two were seldom apart, relied on one another for emotional support "24-7," and jointly took care of Mr. Lorge's mother and father, the judge said.

In 2001, Mr. Lorge's father died. Shortly after, Mr. Lorge's mother suffered a series of strokes and began to mistake the apartment for her childhood home.

Mr. Garrison testified that he and Mr. Lorge ultimately could not "keep up" with Ms. Lorge's needs and placed her in a nursing home.

In the following years, Mr. Garrison and Mr. Lorge pooled their earnings in a joint savings account, according to Mr. Garrison. On Christmas Day 2006, the pair exchanged wedding rings.

But Mr. Garrison's life became a "day-to-day struggle" after Mr. Lorge was shot fatally in the back of the head on Valentine's Day 2009.

The motive for the murder, which occurred outside the building where they lived, is not known, according to Mr. Garrison's attorney, Brian J. Sullivan of MFY Legal Services.

Just months after Mr. Lorge's death, Fleishman Realty Corp. moved to evict Mr. Garrison.

Mr. Garrison countered that he shared a family-like relationship with Ms. Lorge and should succeed her as the tenant of record.

Broad Definition of Family

The New York City Rent and Eviction Regulations bar a landlord from dispossessing the surviving spouse of a deceased tenant or "some other member of the deceased tenant's family who has been living with the tenant." 9 NYCRR 2204.6.

The term "family" is broadly defined and includes traditional and non-traditional members who live with the tenant for two years before the tenant vacates the unit or one year if the tenant is disabled, the judge noted.

Under these regulations, Judge Madhavan concluded that Mr. Lorge "clearly succeeded to his mother's tenancy."

However, this did not "divest" Mr. Garrison "of his independent right to co-succeed to that tenancy," since "traditional family members do not succeed to a tenancy to the exclusion of non-traditional family members," the judge wrote.

At trial, Mr. Garrison proved that he "simultaneously maintained two non-traditional family relationships enabling him to succeed to Helen Lorge's tenancy: a gay life partnership with Michael Lorge; and a mother-son relationship with Michael's mother," the judge added.

Citing the Court of Appeals' 1989 ruling in Braschi v. Stahl Associates, 74 NY2d 201, which provides that "the totality of the relationship as evidenced by the dedication, caring and self-sacrifice of the parties" should ultimately determine whether a familial relationship exists, Judge Madhavan concluded that "the evidence overwhelmingly established that respondent selflessly devoted his life to caring for and supporting Helen and Michael Lorge in every way."

Such "loving, committed, long-term relationships are the very types of non-traditional families that Braschi and the rent regulations sought to protect," the judge wrote.

She rejected the landlord's argument that Mr. Garrison failed to prove his case because he and Mr. Lorge did not hold themselves out as a couple.

To credit the landlord's claim would "be to unfairly void the existence of respondent and Michael Lorge's genuinely loving, committed and family-like relationship, simply because they chose to remain private about their personal lives. The regulations do not countenance such a perverse result," the judge wrote.

Mark Mariani of Gold & Rosenblatt represented the landlord.
Noeleen G. Walder can be reached at nwalder@alm.com.
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Family member excused from filing income affidavit

Postby TenantNet » Thu Jan 12, 2012 3:19 pm

http://www.nycourts.gov/reporter/3dseri ... _00115.htm

Matter of Matter of Murphy v New York State Div. of Hous. & Community Renewal
2012 NY Slip Op 00115
Decided on January 12, 2012
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 12, 2012
Mazzarelli, J.P., Andrias, Saxe, Freedman, Román, JJ.
6524 101005/10

In re Paul Murphy, Petitioner-Respondent,
New York State Division of Housing and Community Renewal, Respondent-Appellant, SouthBridge Towers, Inc., Respondent.

Eric T. Schneiderman, Attorney General, New York (Brian A. Sutherland of counsel), for appellant.
Himmelstein, McConnell, Gribben, Donoghue & Joseph, New York (David Hershey-Webb of counsel), for respondent.

Order and judgment (one paper), Supreme Court, New York County (Alice Schlesinger, J.), entered November 5, 2010, which, among other things, granted the CPLR article 78 petition to annul respondent New York State Division of Housing and Community Renewal's (DHCR) determination, dated October 14, 2009, denying petitioner's appeal from respondent housing company's rejection of his application for succession rights to an apartment, unanimously affirmed, without costs.

Supreme Court properly determined that petitioner submitted ample evidence to establish that he occupied the subject apartment with his parents as a "primary residence" in 1998 and 1999, the two years immediately before his parents permanently vacated the apartment (9 NYCRR 1727-8.2[a]). It was arbitrary and capricious for DHCR to deny his appeal solely on the ground that no annual income affidavits were filed in 1998 and 1999. While the regulation at issue mandates that tenants of record file annual income affidavits, listing as an occupant the family member seeking succession rights (9 NYCRR 1727-8.2[a][2][a]), the relevant inquiry is primary residency during the relevant time period (Matter of Martino v Southbridge Towers, Inc., 68 AD3d 412, 412 [2009]; Matter of Renda v New York State Div. of Hous. & Community Renewal, 22 AD3d 382, 382 [2005]). Accordingly, the failure to file the requisite annual income affidavit is not fatal to succession rights, provided that the party seeking succession proffers an excuse for such failure (Matter of Gilbert v Perine, 52 AD3d 240, 241 [2008]; Matter of Callwood v Cabrera, 49 AD3d 394, 395 [2008]) and demonstrates residency with other documentary proof listed within 22 NYCRR 1727-8.2(a)(2)(b). Here, petitioner's mother offered such an excuse which was supported by the record. Moreover, petitioner submitted a host of other documents evincing that the subject apartment was in fact his primary residence for the relevant time period, namely 1998-1999. Respondent's determination, denying petitioner succession rights to the subject apartment, was thus arbitrary and capricious.

We have considered DHCR's remaining contentions and find them unavailing.



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Postby TenantNet » Wed Feb 08, 2012 5:22 pm

See http://tenant.net/phpBB2/viewtopic.php?p=46972 for a decision with a good discussion of the issues pertinent to succession and non-primary claims.
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Postby TenantNet » Wed Oct 10, 2012 12:45 pm

Another succession case with non-traditional family discussion.

Hitchcock Plaza, Inc., Petitioner v. Shelley Fortune, Respondent, 68457/10
Civil Court, New York County
New York Law Journal

Cite as: Hitchcock Plaza, Inc. v. Shelley Fortune, 68457/10, NYLJ 1202573908426, at *1 (Civ., NY, Decided September 20, 2012)
Judge Jean Schneider
Decided: September 20, 2012


This licensee holdover proceeding was tried before me over several days between February and June 2012. Both sides are represented by counsel. Petitioner contends that respondent Shelley Fortune was the licensee of Wiley Simmons, Jr., its last tenant of record, and that her license expired upon Mr. Simmons's death in 2010. Respondent claims that she is entitled to succeed to the rent controlled tenancy of Mr. Simmons, who was her uncle.

To be entitled to succession, respondent must show, first of all, that she lived in the subject apartment with Mr. Simmons, as the primary residence of both of them, for at least two years before his death. 9 NYCRR §2204.6(d)(1). Respondent established, and petitioner did not seriously contest, that she moved in with her uncle in July 2005 and that he died in 2010. Accordingly respondent meets the co-occupancy requirement of the succession regulation.

However, because uncle and niece are not among the family members entitled to succession on a showing of co-occupancy alone, respondent must also show that she had a nontraditional family relationship with Mr. Simmons, defined by the regulation as characterized by "emotional and financial commitment and interdependence between such person and the tenant." 9 NYCRR §2204.6(d)(3). The regulation directs that no single factor is determinative of whether such a relationship exists, but that among the factors to be considered are the longevity of the relationship, whether the two individuals shared or relied on each other for household expenses, whether they held joint bank accounts, credit cards or other property. whether they formalized their legal relationship by designating one another in legal documents. and whether they held themselves out as family members, performed family functions for one another, and engaged in activities together that showed their intention to create a long term emotionally committed relationship. 9 NYCRR 2204.6(d)(3).

I find based upon the credible evidence at the trial, that Wiley Simmons, Jr., was the father figure in respondent Shelley fortune's life, and that she in entitled to succeed to his tenancy. The trial evidence shows that respondent has little if any relationship with her biological father. She was raised by her mother and by her mother's extended family. Wiley Simmons, Jr., was her mother's brother. He helped Ms. Fortune, to pay for her college education and attended her college graduation. Her biological father did neither. From 1991 until 2000. when she first rented her own apartment. Ms. Fortune lived in the subject apartment with her maternal grandmother and Mr. Simmons and one of his biological daughters. Ms. Fortune rented her own apartment nearby in 2000, but returned to the subject apartment in 2005 when her uncle had difficulty living there by himself and paying the rent on his own. Ms. Fortune's grandmother had died in the intervening years.

Ms. Fortune and Mr. Simmons shared the cost of the rent and bought, prepared and ate meals together. They attended family birthday and holiday functions together and hosted many of those functions in their apartment. They attended church together and went out together to concerts and other events. They took vacations together at a country home owned jointly by Mr. Simmons and Ms. Fortune's mother, his sister.

Ms. Fortune and Mr. Simmons did not have a joint bank account or joint credit cards and their finances were not intermingled. In this regard, their relationship was typical of a father and his adult daughter. There is no evidence that Ms. Fortune was designated executor of Mr. Simmons's will or that she held his power of attorney or health care proxy. On the other hand, there is no evidence that Mr. Simmons, a person of limited means. had any of these legal documents. His biological daughter was the informant on his death certificate, and Ms. Fortune did not arrange or pay for his funeral.

These financial connections are not essential for a finding of nontraditional family relationship. RHM Estates v. Hampshire, 18 AD 3d 326 (2005). A court must, rather, consider the totality of the relationship. Fort Washington Holdings v. Abbott, 36 Misc. 3d 11 (AT 1st Dept. 2012), relied on by the petitioner, does not hold to the contrary. In that case, after a jury verdict for the petitioner, the appellate court held that it must apply the law as charged to the jury by the trial judge and not objected to by the respondent. rather than appellate case law like RHM Estates, above, that applies a more lenient standard.

Based upon the credible evidence, and particularly on the credible testimony of Shelley Fortune and of her mother. I find that Shelley Fortune and Wiley Simmons. Jr., had a nontraditional family relationship sufficient to entitle her to succeed to his tenancy. Ms. Fortune had little contact with her biological father, and Mr. Simmons, her mother's brother, became her father figure. He helped her to pay for college. He attended her graduations and other milestone events. They entertained and celebrated birthdays, holidays and vacations together, within the embrace of a close and warm extended family. When Mr. Simmons was in need. Ms. Fortune gave up her own rent regulated apartment and moved back in with him, sharing household expenses with him and living as a family.

For all of the foregoing reasons, the proceeding is dismissed on the merits.
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Bellis v. Eisenberg, 65262/09

Postby TenantNet » Thu Oct 18, 2012 1:17 pm

Jacqueline Bellis, Petitioner v. Lawrence Eisenberg & Sandra Eisenberg, Respondents, 65262/09
Civil Court, New York County
New York Law Journal

Cite as: Bellis v. Eisenberg, 65262/09, NYLJ 1202575096160, at *1 (Civ., NY, Decided September 21, 2012)
Judge Jean Schneider
Decided: September 21, 2012


This licensee holdover proceeding was tried before me on 17 trial days between September 2010 and July 2011. Both sides were represented by counsel. The parties submitted post-trial memoranda in August 2011. Petitioner claims that respondent Lawrence Eisenberg was a licensee of his mother, Evelyn Eisenberg, the rent regulated tenant of record, and that his license expired upon her death in November 2008. Respondent Lawrence Eisenberg contends that he lived in the subject apartment with his mother for more than two years before her death and is entitled to succeed to her tenancy.

I note preliminarily that petitioner presented no evidence at trial that Lawrence Eisenberg's wife. sued as Sandra Eisenberg and identified in testimony as Sandra Grijalva, was ever in possession of the subject apartment or ever asserted any claim to possession. Ms. Grijalva (or Eisenberg) did not appear in the proceeding. As there is no evidence linking her to the apartment in any way, the proceeding is dismissed as to her.

Lawrence Eisenberg testified that he grew up with his parents in the subject apartment in the 1950's and that his mother remained in the apartment after his parents' divorce. Mr. Eisenberg himself left New York for college and graduate school, followed by a series of college teaching positions in various locations. Respondent testified that he returned to his mother's apartment off and on during the summers when he was not teaching, and it appears that his voter registration, driver's license, and auto registration and insurance remained in New York. Because these documents bore a New York address during long periods when respondent concedes he was living elsewhere, they have no probative value on the issue of where he lived in the two years just before his mother's death.

Respondent testified, with extensive supporting documentation, that he taught in Hattiesburg. Mississippi for the 2005-2006 academic year, ending in May 2006. When the school year ended in May 2006, respondent came to New York to his mother's apartment. Soon after, he accepted a job beginning in August 2006 at the New Jersey Institute of Technology in Newark, New Jersey.

Respondent's wife Sandra did not accompany him to New York in the summer of 2006. Her credit card records confirm that she remained in Mississippi until the fall of 2006 when she came to New Jersey. Respondent testified that Sandra stayed with a friend until November 15, 2006 when he rented an apartment for the two of them in Woodbridge, New Jersey.

Respondent acknowledged that he spent time with his wife in the Woodbridge apartment in late 2006 in n apparent effort at reconciliation. but that he was back full time with his mother in the subject apartment in December 2006. Debit and credit card purchases made by the respondent confirm this account.

Respondent's tax returns for 2006 also confirm his account. For 2006 he reported that he lived in Mississippi for part of the year and in New York for part of the year, and that he earned income in New Jersey as a nonresident for part of the year. For 2007 and 2008 respondent filed New York State resident returns and nonresident returns in New Jersey.

Respondent testified that he began attending early morning AA meetings near his mothers apartment several mornings a week in December 2006. Many witnesses from the meetings confirmed this testimony. Documentary evidence confirmed that respondent met several times a week privately with one of the meeting members in a sponsor-sponsee relationship starting in February 2007 and that he served as the treasurer of the meeting in March 2007. It seems unlikely that his relationships with the group could have developed to this point unless he had bee attending the meetings since at least December 2006 as he claimed.

To be entitled to succession, respondent must establish that he lived in the subject apartment as the primary residence of both of them, for at least two years prior to his mother's death in November 2008. 9 NYCRR §2204.6(d). I find, based upon the credible evidence at trial, that respondent established that the subject apartment was his primary residence beginning no later than August 2006 and continuing through his mother's death.

The credible evidence does show that for a short part of this period. between October and December 2006, respondent spent some of his time in New Jersey with his wife Sandra, with whom he hoped to reconcile. Even during this short period, however, respondent's banking and credit card records show that he continued to spend a substantial amount of time with his mother in the subject apartment, and he soon returned to it full time.

Petitioner's witnesses were simply not credible. All of the building employees testified that respondent did not live at the subject premises until December 2007. This testimony is clearly contradicted by the testimony of respondent's AA witnesses and their records. as well as by respondent's debit and credit card records. The building witnesses appear to remember only respondent's effort to move furniture into the building after hours in December 2007, after the Woodbridge lease expired. While this incident clearly occurred, I do not credit their testimony that it marked the beginning of respondent's occupancy. In this regard, I note that petitioner named respondent as an occupant of the apartment in a nonpayment proceeding in February 2007.

Nor did I find the testimony of Ben Aryeh credible. Mr. Aryeh, an art gallery owner and investor, claimed that he spent 22 days in the apartment in a 60 day period in order to supervise repairs, although he was not involved in making the repairs. He also testified that he was certain that there was no bed in the living room area where respondent said he stayed. This testimony was flatly contradicted by testimony and documents from the company that sold the bed to respondent and delivered it to the apartment.

Finally, Gerald Orlinick also testified there was no bed in the apartment. He was unable to say, through, when respondent moved in to the apartment.

Respondent need not establish that he spent every night in the apartment during the relevant period to be entitled to succession. He simply needs to show that the apartment was his primary residence. The documentary evidence establishes his presence at the apartment by August 2006. The number of his local transactions is reduced in October, November and December 2006 but it does not end, showing that he spent time with Sandra in New Jersey during this period but did not relocate. He did not change his address on any of his accounts during this period, or move his belongings from the apartment to New Jersey. It is clear from the documentary evidence that he had resumed full time occupancy of the subject apartment by February 2007 if not before.

I decline to draw a negative inference from respondent's failure to call his wife Sandra as a witness. At the time of trial Sandra was living independently in North Carolina, the spouses had long been estranged, and respondent described their relationship as "volatile." There is a evidence that Sandra was subject to New York State subpoena or that she was willing to testify voluntarily. Respondent is not entitled to the preclusion order that he sought at trial.

For all of the foregoing reasons, the proceeding is dismissed on the merits.
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Re: Succession issues

Postby TenantNet » Sun Feb 19, 2017 3:48 pm

Ask Sam: I've been living in my mom's stabilized apartment, but never put my name on the lease. Can I claim succession rights?
February 15, 2017
Brick Underground

QUESTION: I've lived in my mother's rent-stabilized apartment for years, and though she moved out 5 years ago, we never changed the name on the lease. (She's continued to sign renewal leases and pays the rent in her name.) The landlord recently found out, and gave us notice that they won't renew the lease, on the grounds that the apartment is no longer her primary residence. But can't I claim succession rights?

ANSWER: Believe it or not, whether or not you can claim succession rights to your mother's rent-stabilized apartment may depend on which borough your apartment is in, says Sam Himmelstein, a lawyer who represents residential and commercial tenants and tenant associations.

Usually, the rule for gaining succesion to a parent's apartment is fairly straightforward, as we've written previously—you need to reside in the apartment with your parent for two years before they vacate (that time shortens to one year if you're disabled or older than 62). During that period the apartment must have been your and the tenant’s primary residence. And though you did spend the requisite amount of time living with your mother before she moved out, the fact that she didn't inform the landlord—and has kept the apartment in her name—makes things considerably more murky.

"New York State is divided into four judicial departments, and two of them cover parts of New York City," Himmelstein explains. Manhattan and the Bronx are encompassed by one of these departments, while Brooklyn, Queens, Staten Island, Long Island, Westchester, Duchess, Rockland, Orange and Putnam counties are encompassed by the other. And currently, these two departments are operating based on separate precedents when it comes to cases like yours.

In Brooklyn, Queens, and Staten Island, courts currently follow the precedent set by a 2014 case called Mexico Leasing LLC vs Jones, in which a tenant had lived in his parent's apartment for 32 years, but hadn't had his name added to the required paperwork. In this case, says Himmelstein, the courts ruled that the principles of succession rules were more important than the technicalities in question. "So the successor was that he was allowed to show that he was there for two years before the parents left, even though they had left years earlier, which outweighed the more technical requirements," Himmelstein explains.

However, Manhattan and Bronx courts currently operate based on a 2009 case, in which a court ruled that if a tenant has continued to renew leases and pay rent in their name (as your mother has done), then they can't claim that they've permanently vacated the apartment, even if they haven't lived there for years. That would mean that the "permanent vacate" date would be at the end of the current lease, and that your two year lookback period of residence would end then.

"Here, your mother's 'permanent vacate' date would start now, and you wouldn't have succession rights since you weren’t' living there together in that two year period," says Himmelstein. "She wasn't living in the apartment, and you have to live with the parent for one or two years immediately preceding the time they permanently vacate the apartment."

"So what this means is that when you continue to renew the lease and pay the rent, you can't say that you vacated," he adds.

Currently, Himmelstein notes, the State Court of Appeals is looking at these cases with the intention of resolving this legal discrepancy between the boroughs. "Right now, the answer depends on where you live," says Himmelstein. "Pretty soon, though, we'll have a definite answer which will likely be the law no matter where you live."

Sam Himmelstein is a partner at Himmelstein, McConnell, Gribben, Donoghue & Joseph in Manhattan.
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