Carmen Martinez, Petitionerv.Marcia Martinez, Manuel Serrano, Rachell Serrano, Cristine Serrano, RespondentsPetitioner commenced this holdover proceeding on October 19, 2016 after serving respondents with a thirty day notice which stated that petitioner was the prime tenant, effective on September 30, 2016. Respondent Marcia Martinez appeared by counsel and interposed an answer asserting four affirmative defenses: lack of jurisdiction based on improper service; petitioner is not a proper party; lack of subject matter jurisdiction; and failure to state a cause of action as respondent, Marcia Martinez, signed a lease with the landlord. Respondent, Marcia Martinez, subsequently moved to dismiss the proceeding based on her assertion that petitioner had abandoned the apartment. This motion was denied and the case was transferred to a trial part. At trial, petitioner, Carmen Martinez, testified that she moved into the apartment with her four children in March 1993. Currently, she resides in the apartment with her daughter, Carolina, and her grandson along with her sister and her sister’s family who moved in June 2013.Petitioner introduced two renewal leases into evidence. The first was a renewal lease agreement between petitioner and Michael Freeman, receiver, which is dated June 28, 2011 for a two year term which ended on September 30, 2013. The second renewal lease is dated June 18, 2015. Petitioner is named as the tenant and the landlord is Lincoln Realty 415 LLC. This renewal lease is not dated by either party who executed the lease. This renewal lease is also for a two year term ending on September 30, 2017. Petitioner also presented two DHCR rent registrations for the subject apartment. One registration for Apartment A1 names Carmen Martinez as the tenant of record from 1993 through 1999, 2001 and 2009. No registrations were filed in 2000 and from 2002 through 2008, and 2010 through 2016. The second registration statement is for Apartment 1A and petitioner is first named as the tenant of record in 2000 and there no prior registrations. The apartment was not registered in 2001, and from 2002 through 2007 and 2011 through 2015, petitioner is registered as the tenant of record.Petitioner’s daughter, Carolina Ramos, also testified that she moved into the apartment approximately twenty-three years ago with her mother and three siblings. Ms. Ramos stated that she presently resides in the apartment with her mother, her aunt, Marcia, Rachel, Cristine and Manuel Serrano and three small children including her son. Her aunt and the Serrano family moved into the apartment in 2013. Ms. Ramos testified that the landlord knocked on the apartment door and handed her the renewal lease that was entered into evidence as Exhibit 3, and she saw the landlord put whiteout on that document.Respondent, Marcia Martinez, testified that she and her family moved into the apartment with her sister four years ago. At that time, her sister Carmen Martinez, also lived in the apartment, but she left and then lived with her boyfriend. Carmen Martinez then left for Texas in April 2015. Marcia Martinez further testified that her sister, Carmen, returned in July 2016 and at that time she informed her sister that she had been given a lease for the apartment. Respondent presented a receipt1 for payment of $12,842.94 to the landlord, and a lease agreement2 for the subject apartment between Lincoln Realty 415 LLC and Marcia Martinez and M. Serrano dated July 14, 2016 for a one year term ending July 31, 2017, and a renewal lease dated April 18, 2017 for a two year term ending July 31, 2019. Respondent testified that she had paid $41,000.00 in rent to the landlord since she moved into the apartment, and had paid rent in 2013, 2014 and 2015 when eviction proceedings were brought by the landlord. Respondent presented copies of several checks as evidence of her payments.In addition, respondent offered the deed for the subject building3 into evidence which reflects that on October 14, 2015, the property was transferred from 415 Lincoln Partners LLC to Lincoln Realty 415 LLC. The Articles of Organization for this owner were filed with the Secretary of State on July 20, 2015.Respondent called Carmen Martinez as her witness. Carmen Martinez acknowledged that she filed a change of address with the United States Postal Service changing her address to a PO Box beginning on August 23, 2016, and explained that although she had a mailbox key, she had stopped receiving mail in the mailbox around March or April 2015. Ms. Carmen Martinez also testified that she had no notice of the proceeding brought by the landlord under Index No. 93677/15.The last DHCR registration for the subject apartment which names petitioner as the tenant of record is in 2015. The renewal lease presented by petitioner as Exhibit 3 carries no weight as the court finds incredible Ms. Ramos’ testimony of the landlord handing her the lease at the apartment and witnessed the landlord placing whiteout on the document. Further, this document is dated June 18, 2015 and names Lincoln Realty 415 LLC as the landlord which is prior to the transfer of the property to this entity on October 14, 2015, and the LLC’s registration with the Department of State in July 2015. RPAPL §741(1) requires that petitioner show her relationship to the property and petitioner failed to meet her burden to do so by a preponderance of the evidence.Based on the foregoing, the petition is dismissed.This constitutes the decision and order of this court.Dated: July 10, 2018
