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Third Lenox Terrace Assoc. v Edwards

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Third Lenox Terrace Assoc. v Edwards

Postby TenantNet » Tue Jan 31, 2012 11:49 am

Third Lenox Terrace Assoc. v Edwards
2009 NY Slip Op 50525(U) [23 Misc 3d 126(A)]
Decided on March 26, 2009
Appellate Term, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.



Decided on March 26, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: McKeon, P.J., Schoenfeld, Heitler, JJ
570287/08.

Third Lenox Terrace Associates, Petitioner-Landlord-Appellant,

against

Cynthia Edwards, Respondent-Tenant-Respondent, -and- Linda Edwards, Respondent-Respondent.


Petitioner-landlord appeals from a final judgment of the Civil Court of the City of New York, New York County (Rubin A. Martino, J.), entered on or about May 2, 2006, after a nonjury trial, dismissing the petition in a holdover summary proceeding.

Per Curiam.

Final judgment (Rubin A. Martino, J.), entered on or about May 2, 2006, reversed, without costs, and final judgment awarded to petitioner-landlord. Issuance of the warrant of eviction shall be stayed for 30 days from the service of a copy of this order with notice of entry.

Exercising our authority to review the record developed at trial and render the judgment warranted by the facts (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492 [1983]), we find that respondent Linda Edwards failed to establish her entitlement to succeed to the rent-stabilized tenancy of her sister Cynthia Edwards. The trial evidence established, and it is not disputed, that tenant took up residence elsewhere in or about March 1998, without notifying landlord of the change in circumstances. Notably, rent continued to be paid by money orders in tenant's name and tenant signed all renewal leases extending through October 2005.

On these uncontroverted facts, respondent's succession claim must fail. Having continued to pay rent and execute renewal leases extending through October 2005, tenant cannot be found to have permanently vacated the premises at any time prior to the 2005 expiration of the last renewal lease that she executed (see East 96th Street Co., LLC v Santos, 13 Misc 3d 133[A], 2006 NY Slip Op 51980[U] [2006]; Metropolitan Life Insurance Co. v Butler, 2002 NY Slip Op 50014[U] [2002]). During the immediately preceding two year period, there was no showing that respondent lived in the premises with tenant, since tenant concededly was not residing there. Nor can we close our eyes to the disturbing reality that respondent and tenant purposefully concealed the fact that tenant was not residing in the apartment since 1998. In these circumstances, respondent must be deemed to have waived any succession claim (see South Pierre Assoc. v Mankowitz, 17 Misc 3d 53 [2007]). To ensure the fair and orderly resolution of succession disputes, the governing Code provision contemplates the timely interposition of succession claims (see Rent Stabilization Code [9 NYCRR] § 2523.5[b][1]). Respondent and tenant affirmatively misrepresented the fact that tenant no longer resided in the apartment for more than eight years and, by necessity, unduly prejudiced landlord in the prosecution of its eviction claim.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: March 26, 2009
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Postby TenantNet » Tue Jan 31, 2012 11:52 am

Third Lenox Terrace Assoc. v Edwards
2012 NY Slip Op 00400
Decided on January 24, 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 24, 2012
Gonzalez, P.J., Tom, Andrias, Moskowitz, Freedman, JJ.

5053 570287/08

Third Lenox Terrace Associates, Petitioner-Respondent,

v

Cynthia Edwards, et al., Respondents-Appellants, Eugene Smith, et al., Respondents.



Cynthia Edwards, appellant pro se.
Rappaport Hertz Cherson & Rosenthal, P.C., Forest Hills
(David I. Paul of counsel), for respondent.

Order of the Appellate Term of the Supreme Court, First Department, entered March 27, 2009, which reversed a judgment of Civil Court, New York County (Rubin A. Martino, J.), entered on or about May 2, 2006, after a nonjury trial, dismissing petitioner landlord's summary holdover petition, granted the petition, and awarded petitioner a final judgment of possession, unanimously affirmed, without costs.

Respondent Linda Edwards is claiming succession rights to the rent-stabilized tenancy of her sister, respondent Cynthia Edwards. The record demonstrates that Cynthia, the tenant of record, initially entered into a two-year lease, beginning on November 15, 1995, with petitioner for the subject apartment. Cynthia remained the tenant of record by executing renewal leases every two years, with the last renewal being for the period beginning November 30, 2003 and ending November 30, 2005.

In August 2005, petitioner commenced the instant summary holdover proceeding for possession of the rent-stabilized apartment on the ground of non-primary residency, having discovered that Cynthia was not residing in the apartment as her primary residence, but that her sister Linda was residing there instead. Linda, who has admittedly been residing in the apartment since 1995, has the burden of proving that she resided with Cynthia, the tenant of record, in the apartment as her primary residence for a period of no less than two years prior to Cynthia permanently vacating the apartment (see Rent Stabilization Code [9 NYCRR] § 2523.5[b]; 68-74 Thompson Realty, LLC v McNally, 71 AD3d 411 [2010]).

The trial evidence establishes, and it is not disputed, that Cynthia, the tenant of record, vacated the apartment in 1998 and established a residence elsewhere. She, however, continued to execute renewal leases for the apartment extending through November 2005 and continued to pay the rent by money orders issued in her name during that time. Thus, although the apartment was no longer her primary residence after 1998, Cynthia, having continued to pay the rent and execute renewal leases extending through November 2005, cannot be found to have permanently [*2]vacated the apartment at any time prior to the expiration of the last lease renewal on November 30, 2005 (see East 96th St. Co., LLC v Santos, 13 Misc 3d 133[A], 2006 NY Slip Op 51980[U] [2006]). Accordingly, the relevant two-year period during which respondent Linda must show that she co-occupied the subject apartment with Cynthia is 2003 to 2005. Although Linda did submit sufficient documentary evidence to establish that she resided in the apartment during that period, there was no showing that Cynthia lived in the premises at that time, since she admittedly had been residing elsewhere since 1998.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 24, 2012

CLERK
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