Recitation, as required by CPLR 2219 (a), of the papers considered in review of these motions:Papers NumberedPetitioner’s Notice of Motion,Affidavits, and annexed Exhibits (A-G) 1Respondent’s Notice of Cross-Motion,Affidavits, annexed Exhibits (1-14, 1-6),and Memorandum of Law dated Feb. 8, 2019 2Petitioner’s Affidavits in Opposition and annexed Exhibits (A-F) 3Respondent’s Supplemental Affidavits,annexed Exhibit (1-4, 1-4), andMemorandum of Law dated April 3, 2019 4Petitioner’s Memorandum in Law in Sur-Reply 5 After oral argument and upon the foregoing cited papers, the decision and order on these motions is as follows: BACKGROUND & PROCEDURAL POSTUREPetitioner commenced the instant nonprimary holdover proceeding against Miguel Figueroa (“Miguel”), the tenant of record of the rent stabilized premises located at 820 Boynton Avenue, Apt. 2M, Bronx, NY 10473. Also named in the Petition as a respondent is Sophia Figueroa (“Sophia”), whom the parties do not dispute is Miguel’s biological daughter.1 Petitioner claims that Miguel no longer occupies the apartment as his primary residence.After Petitioner moved for discovery in August 2017, the case was marked off-calendar for document production and depositions of both Miguel and Sophia. Respondents subsequently filed a joint Answer through counsel alleging several defenses to the proceeding including Sophia’s defense of entitlement to succeed to Miguel’s tenancy. Discovery was completed in January 2018. The matter was then adjourned several more times and again marked off-calendar in contemplation of trial.In December 2018 Petitioner filed the instant motion seeking summary judgment against both Miguel and Sophia. Petitioner argues it is entitled to judgment against Miguel because the undisputed facts establish he no longer occupies the subject premises as his primary residence. Petitioner seeks summary judgment against Sophia claiming that she cannot succeed to the tenancy under the prevailing law in the First Department.Respondents oppose Petitioner’s application and cross-move for summary judgment on ophia’s succession defense. Respondents’ papers do not deny that Miguel no longer resides in the unit as his primary residence.Oral argument was held on May 23, 2019.ARGUMENTSPetitioner seeks summary judgment against Miguel asserting that, based on Respondents’ sworn statements, it is not disputed that Miguel does not occupy the apartment as his primary residence. Petitioner annexes deposition transcripts to its motion, in which Miguel and Sophia admit that Miguel moved out of the premises in October 2013. (Petitioner’s exhibit C, tr at 7; Petitioner’s exhibit D, tr at 12.) Petitioner also attaches to its papers the affidavit of property manager Nathan Dessler who affirms that Miguel moved out of the premises prior to the service of the termination notice. As such, Petitioner argues, Miguel cannot establish that he had an ongoing, substantial physical nexus with the controlled premises for actual living purposes and therefore judgment against Miguel should be entered.Petitioner also seeks summary judgment against Sophia arguing she is not entitled to succeed to Miguel’s tenancy as a matter of law. Petitioner argues that the prevailing case law in the First Department, Third Lenox Terrace Assoc. v. Edwards (91 AD3d 532 [1st Dept 2012]), requires the Court to find that Miguel did not permanently vacate in October 2013 because by signing the 2015 renewal lease and continuing to pay rent in his name, he maintained an ongoing connection to the apartment even though he no longer occupied the unit as his primary residence. In Third Lenox succession, was denied to a remaining family member where the tenant of record continued to sign renewal leases and pay rent in her name for seven years after she ceased living in the premises as her primary residence. (Id.) Petitioner argues that, pursuant to Third Lenox, the Court must consider Miguel’s permanent vacatur date to be April 30, 2017 which is the date the last renewal lease expired. As Miguel admits he actually vacated the premises in 2013 (four years prior to the expiration of the renewal lease), Petitioner argues that as a matter of law Miguel and Sophia could not have co-resided in the premises for the requisite two-year period prior to Miguel’s permanent vacatur for Sophia to obtain succession rights.2In opposition to Petitioner’s motion for summary judgment against her,3 Sophia argues that she is entitled to summary judgment as a matter of law because she and Miguel co-resided in the apartment as a primary residence for the two years prior to Miguel’s actual permanent vacatur in October 2013.Respondents do not deny that Miguel signed the 2015 renewal lease after having vacated the premises and continued to make payments in his name. Instead, they claim that Sophia is entitled to succession despite Miguel having done so. Respondents ask the Court to distinguish this case from Third Lenox on its facts and likens the facts herein to those present in Jourdain v. NY St. Div. of Hous. & Community Renewal (159 AD3d 41 [2d Dept 2018]), an Appellate Division, Second Department case.In Jourdain, the tenant of record vacated the premises eight years before the remaining family member asserted her claim to succession, continued to pay rent in her own name, and signed a renewal lease while she was admittedly not living in the apartment. (Id.) Notwithstanding these facts, the Court held that the remaining family member was entitled to succeed to the premises. (Id. at 49.) Sophia urges the Court to find that here, as in Jourdain, she is not barred from asserting her succession claim simply because Miguel signed a single renewal lease and continued to pay rent in his name after his actual permanent vacatur in 2013. This is especially true, Sophia argues, because Petitioner fails to allege any discernible prejudice caused by these acts.4 No prejudice exists, Respondents claim, because Petitioner was aware that Sophia resided in the premises since 2009, and Miguel requested Sophia be added to the lease on numerous occasions. (Affidavit of Miguel at 18-19, 22, 32.)In addition to her own affidavit, Sophia attaches to her motion the affidavits of Miguel, and her mother, Daisy Apellaniz, both of which aver that Miguel and Sophia resided together in the premises from 2009 to 2013. Additionally, Sophia annexes documentary records which purport to reflect her continuous occupancy of the premises as her primary residence from 2009 to present. (Respondent’s exhibits 1-6).DISCUSSIONSummary judgment is a drastic remedy appropriate only where there is no doubt as to the absence of triable issues. (Andre v. Pomeroy, 35 NY2d 361, 364 [1974].) On such a motion, a court’s function is to find, rather than to decide, issues of fact. (Southbridge Towers, Inc. v. Renda, 21 Misc 3d 1138[A], 2008 NY Slip Op 52418[U] [Civ Ct, NY County 2008], citing Epstein v. Scally, 99 AD2d 713 [1st Dept 1984].) The facts must be considered “in the light most favorable to the non-moving party.” (Ortiz v. Varsity Holdings, LLC, 18 NY3d 355, 339 [2011].) The Court must accept as true the non-moving party’s recounting of the facts and must draw all reasonable inferences in favor of the non-moving party. (Warney v. Haddad, 237 AD2d 123 [1st Dept 1994]; Assaf v. Ropog Cab Corp., 153 AD2d 520 [1st Dept. 1989].) Only upon a prima facie showing of entitlement to summary judgment, does the burden shift to the non-moving party to establish material issues of fact requiring a trial. (Alvarez v. Prospect Hospital, 68 NY2d 320, 324 [1986].) If an issue is “fairly debatable a motion for summary judgment must be denied.” (Stone v. Goodson, 8 NY2d 8, 12 [1960].)Petitioner’s Motion for Summary Judgment against Miguel FigueroaSection 2524.4 (c) of the Rent Stabilization Code allows a landlord to refuse to renew a stabilized tenant’s lease if the tenant does not occupy the premises as his or her primary residence. The courts have interpreted “primary residence” to mean an “ongoing, substantial, physical nexus with the controlled premises for actual living purposes.” (Emay Props. Corp. v. Norton, 136 Misc 2d 127, 129 [App Term, 1st Dept 1987]; E. End Temple v. Silverman, 199 AD2d 94, 94 [1st Dept 1993]; Berwick Land Corp. v. Mucelli, 249 AD2d 18, 18 [1st Dept 1998].)Based on the evidence and the Respondents’ moving papers, Petitioner has established its prima facie entitlement to summary judgment against Miguel on its claim of nonprimary residence. As noted above, Respondent’s opposition papers do not dispute that Miguel vacated the premises in 2013. In fact, Respondents in their papers repeatedly assert that Miguel vacated the premises in October 2013. (Affidavit of Miguel at 3, 27; affidavit of Sophia at 3, 15.) As Respondents raise no triable issues of fact as to Miguel’s primary residence, the court grants Petitioner summary judgment against Miguel Figueroa.Petitioner’s Motion for Summary Judgment Against Sophia FigueroaPetitioner claims it is entitled to a judgment against Sophia because, as a matter of law in the First Department, she cannot establish a claim for succession. While it is undisputed that Sophia qualifies as a family member eligible for succession under the Rent Stabilization Code, Petitioner alleges Sophia is barred from asserting her claim because she and Miguel did not co-occupy the premises for a period of two years prior to the expiration of the last renewal lease signed by Miguel. Petitioner relies on the definition of “permanent vacatur” espoused by the Appellate Division, First Department in Third Lenox. Conversely, Petitioner claims that even if the Jourdain reasoning is applied here and the date of permanent vacatur is October 2013, Sophia’s documentary evidence falls short of entitling her to succession as no documentation prior to 2012 is submitted.In Jourdain, Marie Jourdain, the mother of the tenant of record, Scherley, had lived in the premises since the inception of the tenancy. (Jourdain, 159 AD3d at 43.) Prior to vacating the premises in 2008 to live with her husband, Scherley listed her mother as an additional occupant on the lease. (Id.) After she vacated, Scherley continued to pay rent in her name, and executed a single two-year renewal lease which expired in December 2011. (Id.) During this period, Marie Jourdain continued to live in the apartment without her daughter. (Id.)After the expiration of the renewal lease signed by her daughter, Marie Jourdain sought an administrative determination from DHCR that she was entitled to a renewal lease in her own name as a remaining family member. (Id.) Relying on Third Lenox, DHCR denied her administrative complaint. (Id. at 44.) Marie Jourdain challenged DHCR’s determination in an Article 78 proceeding. (Id.) The supreme court annulled DHCR’s determination, and the landlord appealed. (Id.) On appeal, DHCR reversed its position and submitted an amicus curiae brief in support of Marie Jourdain. (Id.)The Appellate Division, Second Department in Jourdain summarized the issue before them as follows:“We are asked to determine whether a family member who had been residing in an apartment with the tenant for years and had the right to seek succession when the tenant moved out of the apartment lost that right by virtue of the fact that the tenant continued to pay the rent and executed a renewal lease after moving out.”(Id. at 42.)Ultimately, the Jourdain Court found that DHCR was not bound by Third Lenox because the facts were distinguishable. In Third Lenox, the tenant of record signed three two-year renewal leases and paid rent in her own name for seven years after she had admittedly vacated the apartment. (Third Lenox, 91 AD3d at 533.) The Jourdain Court noted that “[t]he execution of one renewal lease after having moved out of the apartment does not necessarily indicate an attempt to deceive the landlord.” (Jourdain, 159 AD3d at 48.) “Most importantly [the court found], since there is no dispute in this case that Marie was a family member who had resided in the apartment since 2003, under the circumstances of this case, the landlord was not prejudiced by any misrepresentation or delay.” (Id.; see also Riverton Assocs. v. Knibb, 11 Misc 3d 14 [App Term, 1st Dept 2005] [finding that forging leases of deceased tenant of record for two years was a relatively short-lived duration of misrepresentation and did not preclude succession claim].)The Jourdain Court also parsed the remedial purposes of the rent regulation laws, finding that “while the language of the regulation is arguably ambiguous in that it could be read in the manner suggested by [the landlord], we conclude that, in promulgating Rent Stabilization Code §2523.5 (b) (1), the DHCR intended the ‘permanent vacating of the housing accommodation by the tenant’ to mean the time that the tenant permanently ceased residing at the housing accommodation” regardless of whether the tenant signed a single renewal lease and continued to pay rent while not residing in the apartment. (Id. at 46.) This, the Court observed, promotes “[t]he purpose of the succession rule [which] is to prevent displacement of family members who have been residing with tenants at housing accommodations for long periods of time.” (Id., citing Matter of Murphy v. NY St. Div. of Hous. & Community Renewal, 21 NY3d 649, 653 [2013].)Several First Department courts have found that the decision in Third Lenox does not create a bright-line rule that, in every circumstance, permanent vacatur only occurs upon the expiration of the last renewal lease signed by the tenant of record. These courts distinguish the Third Lenox rule from situations where there is no long-standing subterfuge resulting in prejudice to the landlord. (BPP ST Owner LLC v. Nichols, 63 Misc 3d 18 [App Term, 1st Dept 2019] [granting succession after finding no prejudice to landlord who knew of successor's presence in apartment and numerous attempts were made to add successor to lease]; 90 Elizabeth Apt. LLC v. Eng, 56 Misc 3d 128[A], 2017 NY Slip Op 50833[U] [App Term, 1st Dept 2017] [denying landlord summary judgment in absence of subterfuge to protect tenant of record's continued possession]; see also Park Central I LLC v. Williams, 62 Misc 3d 1225[A], 2019 NY Slip Op 50254[U] [Civ Ct, Bronx County 2019].)In contrast, the cases cited by Petitioner in support of its position that this Court should strictly apply the rule in Third Lenoxrule all involve intentional or enduring deceit, as well as prejudice to the landlord, distinguishing the facts in those cases from the facts present here. In Mia Terra Realty Corp. v. Sloan (57 Misc 3d 141[A], 2017 NY Slip Op 51360[U] [App Term, 1st Dept 2017]), the facts adduced at trial were that the tenant continued to execute renewal leases for the apartment and pay rent in her own name for 8 years — twice as long as the facts in this case. In Well Done Realty, LLC v. Epps, (58 Misc 3d 160[A], 2018 NY Slip Op 50259[U] [App Term, 1st Dept 2018]), the landlord was granted summary judgment as it was undisputed that the tenants of record had vacated 12 years prior to the expiration of their last renewal lease and continued to pay rent in their own names during that period. In South Pierre Assoc. v. Mankowitz (17 Misc 3d 53, 54-55 [App Term, 1st Dept 2007] [internal quotation marks omitted]), the court found that the would-be successor’s “persistent and systematic pattern of deception” evidenced by his “forging the deceased tenant’s name on no fewer than seven renewal leases and numerous rental payments” over the course of more than 10 years prejudiced the landlord by preventing the landlord from undertaking a contemporaneous investigation into the “emotional and financial underpinnings of the respondent’s nontraditional family member succession claim.”Not cited by Petitioner, as it was published after the issues herein were fully briefed, is 186 Norfolk, LLC v. Euvin, (2019 NY Slip Op 50890[U] [App Term, 1st Dept 2019]). Citing to Mankowitz, the Euvin court upheld the trial court’s denial of succession rights to the former wife of the tenant of record. The court in Euvin found that the tenant and would-be successor “engaged in a persistent and systematic pattern of deception whereby they purposefully concealed respondent’s occupancy status for more than two decades.” (Euvin, 2019 NY Slip Op 50890[U], *1.) Among other acts of deception, including forging numerous renewal leases and apartment-work orders in the tenant’s name for 20 years, the tenant and his former wife pretended to be married by displaying their marriage certificate to the landlord almost 15 years after their divorce. (Id.) By failing to interpose a succession claim in a “timely manner” as contemplated by the Rent Stabilization Code, the court found that the landlord was unduly prejudiced because it was prevented from “undertaking a contemporaneous investigation into the emotional and financial underpinnings of respondent’s nontraditional family member succession claim.” (Euvin, 2019 NY Slip Op 50890[U], *2.) Notably, in both Mankowitz and Euvin, the courts found that the landlord was prejudiced in the prosecution of its case because delay or concealment frustrated its ability to investigate the underpinnings of a non-traditional family member claim. (Id.; Mankowitz, 17 Misc 3d at 55.)Here, it is not disputed that Sophia is Miguel’s biological daughter or that he actually vacated the premises in October 2013. Nor is it disputed that Miguel signed only one renewal lease after his vacatur, and any alleged misrepresentation that he continued to reside in the premises in 2017 (affirmation of Petitioner’s counsel at 47), was made during the term of the single renewal lease that he signed after his vacatur. In his deposition, Miguel stated that he simply wrote Sophia’s name on the 2015 lease that he signed instead of having her sign it because he had tried and failed to add her before in 2009 and 2013. (Miguel tr at 32, lines 3-9; Miguel’s aff at 18, 19, 22.)Under the facts and circumstances herein, accepting as true Sophia’s recounting of the facts and drawing all reasonable inferences in favor of her, the Court does not find that Miguel possessed a studied intent to mislead Petitioner of the kind contemplated by Third Lenox. Indeed, the facts herein are substantially similar to those in Jourdain, and materially dissimilar from the facts in Third Lenox, the facts in the cases upon which the Third Lenox court relied, and the facts in the cases that rely on Third Lenox. Significantly, Petitioner has made no argument that it is prejudiced in the prosecution of this vigorously litigated proceeding. (See n 4, supra.) Even if Petitioner had so argued, this Court would not have found that the circumstances herein militate in favor of such a finding.For the reasons set forth above, the Court does not hold, as a matter of law, that Miguel’s vacate date for the purposes of determining Sophia’s succession defense is the expiration of his last signed renewal lease. On the record before this court, Third Lenox does not require a different result. Thus, Petitioner has not made a showing of entitlement to summary judgment and its motion is denied.Sophia Figueroa’s Motion for Summary JudgmentRespondents maintain, and Petitioner does not dispute that that Miguel moved out of the subject apartment in October 2013. Respondent argues that the relevant period of co-occupancy is October 2011 through September 2013 — two years prior to his actual vacatur.However, there is no evidence annexed to Sophia’s motion connecting her to the premises from 2011 to February 2012 other than her affidavits and those of her parents. Because a motion for summary judgment is not the appropriate time for a court to weigh the credibility of the affiants, the submitted affidavits are not sufficient to warrant summary judgment in favor of Sophia. (See Glick & Dolleck, Inc. v. Tri-Pac Export Corp., 22 NY2d 439, 441 [1968].)Sophia’s explanation that her motion lacks documentary evidence from 2011 because Petitioner’s discovery demand did not request records prior to 2012 is unpersuasive. It is Sophia’s burden to establish her entitlement to succession. As such, Sophia has failed to establish a prima facie entitlement to summary judgment herein and her cross-motion for summary judgment is denied.CONCLUSIONApplying the above law and rules to the facts herein, it is hereby:ORDERED that Petitioner’s motion for summary judgment against Miguel Figueroa is granted. The clerk of the court is directed to enter a judgment of possession against Miguel Figueroa and the warrant may issue forthwith with execution stayed through July 5, 2019; said warrant is effective only as against Miguel Figueroa;ORDERED that Petitioner’s motion for summary judgment against Sophia Figueroa is denied; andORDERED that Sophia Figueroa’s motion for summary judgment in favor of herself is denied.The parties are directed to appear in court on July 19, 2019 at 9:30 for trial.This constitutes the Decision and Order of the Court.SO ORDERED,Dated: June 19, 2019Bronx, New York
