DECISION/ORDER The decision after trial is as follows:Petitioner commenced this holdover proceeding seeking possession of the premises on the ground that respondent was the licensee of Gregoria Marquez, the tenant of record who entered into a nursing home in April 2015. Respondent Maria Elena Soto appeared by counsel and asserted a general denial and the following affirmative defenses and counterclaims: (1) petitioner has not sought possession against the tenant of record and therefore may not maintain this proceeding (2) succession; (3) warranty of habitability and a counterclaim for warranty of habitability and attorney fees.At trial, petitioner presented its prima facie case and submitted a certified deed, certified DHCR registration, certified multiple dwelling registration and the last lease by the tenant of record. Both parties agree the tenant of record permanently vacated the premises to a nursing home on April 15, 2014.Respondent called Maria Palacio who is Maria Soto’s sister and resides in Florida since 2001. Ms. Palacio testified that Ms. Soto moved to Florida in 1988 but that in 2010 Ms. Soto moved back to New York. Before Ms. Soto moved back to New York, she stayed at Ms. Palacio’s house and Ms. Palacio recalls later seeing Ma. Soto’s furniture that was in her house, now in the New York apartment. Ms. Palacio recalls that her sister rented a moving truck and drove from Florida to New York. Ms. Palacio stated that in 2011, 2012, and 2013 she would come to New York at least twice a year for a week or two to see her mother and to giver her sister a break. Ms. Palacio testified that since 2014 through present, she still comes to New York to visit her mother. Ms. Palacio indicated that her mother has Alzheimer and dementia and needed 24 hour care because she would wander off. Ms. Palacio recalled that in 2013 she came to New York and her sister returned to Tampa, Florida for a week and stayed at her husbands house.Respondent Maria Soto testified and introduced an original birth certificate which is written in both English and Spanish which indicates that that Gregoria Marquez is her mother. Ms. Soto submitted a New York State Interim ID Card from the NYS Department of Motor Vehicles dated 7/22/13 with the subject premises as her address. Ms. Soto testified that she has resided continously at 1015 Washington Avenue since the end of 2010. Respondent introduced a Penske truck leasing receipt in her name dated December 27, 2010 from Tampa, Florida to Brooklyn, New York. Ms. Soto testified that she moved in with her mother because of her declining health and that although her mother had home health aides off and on, they would only stay 4 or 6 hours at a time. Ms. Soto testified that she has a sister who lives in Brooklyn but that her sister would only help her and her mother financially. Ms. Soto introduced Banco Popular bank records with an account for Gregoria Marquez with the address 1015 Washington Avenue Apt. 1L from August 2011 through December 2011 with minimal usage and balance, mostly of a social security and pension check being deposited and then withdrawn and then Ms. Soto in January 2012 is added to said account. The account again had minimal usage and balance through December 2017. Ms. Soto also introduced Banco Popular account in her own name with the subject address from August 2011 with almost no usage or balance through May 2014. In June 2014 the activity of the account began seeing consistent activity and purchases in Brooklyn. Ms. Soto introduced an account from Suncoast Credit Union account held jointly with John Soto with activity in Florida and New York for the month of December 2010 and January 2011. From that point until January 2013, the account list Ms. Soto’s name but not address and there is no activity on the account. In February 2013 the account lists Ms. Soto and the 1015 Washington Avenue address with no activity through February 2015. Ms. Soto presented documentary evidence from her health case insurance provider indicating services from 2012 through 2018 in New York. Ms. Soto introduced medical visit logs from Kings County Hospital Center for Ms. Soto for walk in visits on 4/5/2012, 3/24/2014, 3/25/2014, 10/17/2016 with the 1015 Washington Avenue address. Ms. Soto testified that her mother would withdraw money from her bank account with the assistance of her aide and pay the rent. In 2012, Ms. Soto stated that she began taking care of the bills. Ms. Soto introduced money order stubs and carbon copies and copies of the rent bills indicating from 2012 through 2015 the rent was billed and paid in Gregoria Marquez’s name only. Ms. Soto introduced documents from the Social Security Administration evidencing an application for benefits with the subject premises address listed on the forms from June 2012 through September 2014 and documents indicating hearing dates and status of respondent’s claim.Petitioner on rebuttal submitted a renewed Florida license issued June 2016 for the respondent and a New York State identification card issued for Ms. Soto on July 29, 2016.Courts have held that the person claiming succession has the burden to proof cohabitation as a primary residence by the preponderance of the evidence) See (PCV ST Owner LP v. Shelly), 20 Misc3d 1125(A) [Civ Ct 2008]; (South Pierre Assocs. v. Mankowitz), NYLJ January 18, 2006 at page 20, col. 1 [NY Civ Ct 2006]). No one factor is determinative but rather credibility of evidence either by testimony or documentation is evaluated (See Partita Partners LLC v. Mo Ling Lam, 21 Misc.3d 1101(A) [NY Civ Ct 2008]). In order to prove succession to a rent stabilized apartment, respondent must prove her entitlement by a preponderance of the evidence (See South Pierre Assoc. v. Mankowitz, 844 NYS2d 552 [App Term 1st Dept 2007]). Traditional indicia to prove co occupancy in a succession case include a driver’s license, voter’s registration, tax returns and telephone and bank records (See 300 E 34th St. Co. v. Habeeb, 248 Ad2d 50 [1st Dept 1997]). Although the absence of documentation, is not always fatal to a succession claim (See 300 E. 34th st. v. Habeeb, 683 NYS2d 175 [AD 1st Dept 1997]) where there is a preponderance of credible personal testimony. The inquiry in succession cases are narrowly limited to a clearly defined finite time period which is a two year period immediately preceding the tenant’s of record’s death or vacatur. (See 72A Realty Assoc. v. Chutney, 15 Misc3d 100 [App Term 1st Dept 2007]).Here the court notes that although the documentary evidence submitted does not includes the usual indicia of residency, work payment stubs, tax returns, electric or utility bills, credit card statements etc, the documentation that was presented indicates Ms. Soto’s presence in New York throughout the relevant time period. The overall evidence presented at trial, leads the court to conclude that Maria Soto has proven her succession claim.Petitioner is directed to provide Maria Soto with a succession rent stabilized lease in her name forthwith and the petition is hereby dismissed as to Maria Soto.This constitutes the decision and order of this court.Dated: May 3, 2019Brooklyn, New York
