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This opinion is uncorrected and will not be published in the printed Official Reports.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