DECISION/ORDER This licensee holdover proceeding was tried before me between March 21, 2017 and July 31, 2017. All appearing parties were represented by counsel. The petition, filed in March 2016, alleges that the rent stabilized tenant of record, Francesca Morales, died on September 13, 2014, that her last lease expired on January 31, 2016, and that the remaining occupants of the subject apartment, named in the pleadings as John and Jane Doe, are licensees whose licenses expired when Francesca Morales died.Ramon Fana, Francesca Morales’s son-in-law, and Rosayra Fana, Ramon’s daughter and Francesca Morales’s granddaughter, both appeared by counsel and both asserted a right to succeed to Francesca Morales’s tenancy. The petition also names Rosario Veras, Francesca Morales’s daughter and the representative of her estate, as a respondent. Ms. Veras has not formally appeared in the case and asserts no right to the apartment. She did testify at the trial as a witness for her husband and daughter.The facts, as established by the credible testimony and the documentary evidence presented at the trial, are as follows.Francesca Morales was 103 years old when she died. She had lived in the subject premises, Apartment 3 at 553 West 144th Street in Manhattan, for more than 40 years. Although petitioner had claimed in prior litigation that Francesca Morales no longer lived in the apartment, the trial evidence here establishes clearly that she lived in the subject apartment until her death at nearby Lincoln Hospital on September 13, 2014. Her death certificate lists the subject apartment as her residence.In 2005 Rosario Veras and Ramon Fana sold their house in Queens and moved in with Francesca Morales in Apartment 3. Mr. Fana had stopped working as a taxi cab driver that year because he was disabled.Radhames Veras, Francesca Morales’s son and Rosario Veras’s brother, lived with his family next door, in Apartment 4. In 2005 Francesca Morales and her entire household moved to Apartment 4 so that Apartment 3 could be renovated. The renovation was part of a rehabilitation of the entire building financed in part by the City of New York.In 2006 Ramon Fana and Rosario Veras separated. Ms. Veras and their son moved to a house in Belleville, New Jersey, purchased in Ramon Fana’s name with money inherited from his parents. Ramon and Rosayra remained behind with Francesca in Apartment 4 as the renovation of Apartment 3 continued.Ramon’s voter registration in 2007, his motor vehicle registration in 2007, and his driver’s license issued in 2008 all give Apartment 4 as his address. Many of Ramon’s documents continued to show Apartment 4 as his address rather than Apartment 3 even after Francesca Morales and her household moved back to Apartment 3 in 2009 when the renovation was completed. Mr. Fana testified credibly that he felt no need to change his address in 2009 or after, as family members still lived next door and he received his mail without difficulty.Ramon Fana’s Bank of America records show that he received his bank statements at Apartment 3 for the two years immediately before Francesca Morales’s death. Mr. Fana’s Social Security Disability checks were deposited directly into this account, and most of his withdrawals and other transactions took place in New York City and near the subject apartment. There were occasional transactions in Belleville, New Jersey. These were consistent with Rosario Veras’s testimony that although they were separated, she continued to help Ramon, and that he visited the Belleville house once or twice a month.Rosayra Fana also remained in the subject building when her mother and brother moved to New Jersey. She attended Mount St. Vincent college in the Bronx in 2006 and 2007, and LaGuardia College in Long Island City, Queens, in 2007 and 2008. However, in 2009 Rosayra began to attend New Jersey City College in Jersey City, New Jersey. She admitted that she was a full time student there during the last two years of her grandmother’s life, from 2012 to 2014. She also acknowledged that all of her college records during that period, as well as her financial aid records, list her mother’s address in Belleville as her address. She has a New Jersey driver’s license and, when she started to work, her job was also in New Jersey. She had a joint bank account with her mother with the Belleville address, and her Facebook page in 2013 gave her home as Belleville, New Jersey. In the face of all of this contrary evidence, the court cannot credit Rosayra’s testimony that she continued to live in Manhattan with her grandmother from 2006 until her grandmother’s death in 2014.The evidence does support Ramon Fana’s claim that he lived with Francesca Morales from 2005 until her death in 2014. A former superintendent testified that he lived in the building for the entire period, that he was close to the family, and that he remembered playing dominos and drinking in Apartment 3 with Francesca Morales, Ramon Fana, and other family members between 2012 and 2014. Petitioner fired the superintendent after Ms. Morales’s death, allegedly because he had not been truthful about who was living in the subject apartment.Petitioner’s manager acknowledged that Ramon was present during an inspection of the apartment in March 2014, and the same agent testified that there was evidence of a man living in the apartment during an inspection in October 2013.To establish a right to succession, a family member must show that he occupied the apartment with the tenant of record as the primary residence of both for the last two years before the tenant’s death or permanent departure from the apartment 9 NYCRR Section 2523.5(b). A son-in-law falls within the definition of family member under the regulations. 9 NYCRR Section 2520.6(0)(1). The respondent bears the burden of proof on an affirmative defense of succession. Cox v. J.D. Realty Associates, 217 AD 2d 179 (1st Dept. 1995).Here, Ramon Fana has met his burden and has established that he is entitled to succeed to Francesca Morales’s tenancy. Accordingly the proceeding is dismissed on the merits.Dated: 5/7/18
