DECISION/ORDER This licensee holdover proceeding was tried before me on March 19 and March 21, 2019. Both parties were represented by counsel. Respondent claimed a right to succeed to his deceased grandfather’s rent stabilized tenancy.To be entitled to succession, respondent must prove his relationship to the tenant of record and that he lived in the subject apartment with the tenant of record for at least two years before the tenant of record permanently vacated. 9 NYCRR Section 2523.5(b)(1). Here, respondent proved, with his birth certificate and his mother’s, that he is the grandson of Martin Casey, who was the last tenant of record. 9 NYCRR Section 2520.6(0). Respondent also established, with his own credible testimony and that of his mother, Patricia Connelly, that he has lived in the subject apartment since 2001. The testimony is supported by a voluminous documentary record. Mr. Casey included respondent’s name on a rent check in 2001. In 2002 and 2003 Mr. Casey listed respondent as a resident of the apartment on his renewal lease documents. Respondent signed maintenance requests in 2004 and 2005. Respondent’s motor vehicle registration included the subject address starting in 2004. The cable bill was in his name from about the same time, and he was a co-account holder on the Con Edison account starting in 2007.Respondent’s tax returns and W-2 forms show the subject address from 2006 onward. He dies not appear to have filed a tax return from 2001 to 2005. Respondent had a joint bank account with Mr. Casey starting in 2001 with the subject address. He had his own bank account starting in 2010 with the same address. Both accounts show substantial activity in the vicinity of the apartment.Petitioner appears to have been fully aware of respondent’s presence in the apartment almost from the beginning of his occupancy. In 2006 petitioner brought an illegal sublet proceeding against Mr. Casey and the respondent. Respondent produced documents in that case and was deposed. Petitioner abandoned the case after discovery.Petitioner does not seriously contest respondent’s long term occupancy of the apartment. Rather, petitioner contends that Mr. Casey stopped living in the apartment in about 2010, or perhaps earlier. Petitioner argues that the apartment was not Mr. Casey’s primary residence for the last two years of Mr. Casey’s life, and that this defeats the respondent’s succession claim.The deposition of Dr. Mohan, Mr. Casey’s treating physician, taken on June 9, 2017, is admitted in evidence under CPLR Section 3117(a)(3)(ii) and (iv). Dr. Mohan is no longer in New York state and is thus not subject to subpoena. Petitioner made a good faith effort to produce him for trial and was unsuccessful. The documents marked Ex. 1 and Ex. 2 at the deposition are also admitted, as Dr. Mohan’s business records. The documents marked Ex. 3 and Ex. 4 are not admitted. They are records prepared by others, they are not certified, there is no foundation for their admissibility as business records, and there is no evidence that Dr. Mohan used them to make medical decisions about treatment.The trial record, including Dr. Mohan’s deposition and records, reflects that Martin Casey had a stroke in about 2005. In 2006 while the parties were litigating the sublet case in this court, Mr. Casey was staying at Patricia Connelly’s home in Yonkers while he recovered. He returned home sometime in 2007. From 2007 to 2010 or 2011, Mr. Casey lived in the subject apartment. Respondent and his mother shared responsibility for his care. He certainly visited Patricia Connelly in Yonkers regularly but he lived in the subject apartment. Both respondent and Patricia Connelly testified credibly to these facts and there is no evidence at all to the contrary.In 2010 or 2011 Mr. Casey once again fell gravely ill. According to Dr. Mohan, he had a second stroke in early 2011. From that point until his death in July 2012, he was repeatedly hospitalized, transferred to a rehab facility, released to his daughter’s home in Yonkers, and then hospitalized again. Although there is no evidence that Mr. Casey moved out of his apartment during this period, he was physically there rarely, if at all.Various courts have recognized that it is difficult to identify a specific date upon which a rent regulated tenant, like Mr. Casey, who is confined to a nursing home (or, as in Mr. Casey’s case, to a series of hospitals and other facilities) for medical reasons, transitions from maintaining his apartment as his primary residence to permanently vacating the apartment. See, e.g., 90 Elizabeth Apartments LLC v. Eng, 58 Misc. 3d 300 (Civ. Ct. NY Co. 2017); Elk 300 E. 83rd LLC v. Dowd, 2015 NY Slip Op. 32443(U)(Civ. Ct. NY Co. 2015), aff’d 52 Misc. 3d 131(A)(AT 1st Dept. 2016). Nor does admission to a hospital, rehab facility, or caregiver’s home for medical reasons, in and of itself, mean that the tenant’s apartment is no longer his primary residence. Matter of LJM Venture No. 1 v. Joy, 105 Misc. 2d 291 (Sup. Ct. NY Co. 1980); Soybel v. Gruber, 136 Misc. 2d 430 (Civ. Ct. NY Co. 1987).Here, I find that Mr. Casey permanently vacated the subject apartment at some point, impossible to pinpoint, between his second stroke in early 2011 and his death in 2012. That is the period, identified by Dr. Mohan, when Mr. Casey was probably physically unable to return to the apartment. Before that point, the subject apartment was his primary residence, despite his physical absences for medical treatment. No matter when, during the time frame described, Mr. Casey permanently vacated, respondent clearly lived with him for the two years prior to his vacatur.Petitioner’s reliance on Third Lenox Terrace Assoc. v. Edwards, 91 AD 3d 532 (1st Dept. 2012) is misplaced. There is no evidence in this record that respondent engaged in deception about the occupancy of the apartment. Respondent’s occupancy was fully disclosed from the beginning, and petitioner was fully aware of it. Petitioner commenced litigation in 2006 and then abandoned it. Nor does the delay of one or two years before Mr. Casey’s absence and eventual death were disclosed to petitioner form a basis to deny respondent’s succession claim. Courts have repeatedly excused such delay under circumstances like these. See, e.g., 90 Elizabeth Apartments LLC v. Eng, 58 Misc. 3d 300 (Civ. Ct. NY Co. 2017)(two year delay did not prejudice the landlord); 354 E. 66th St. Realty Corp. v. Curry, 26 Misc. 3d 130(A)(AT 1st Dept. 2010)(15 month delay not fatal to succession claim); Patmundi v. Mui, 32 Misc. 3d 1232(A)(Civ. Ct. NY Co. 2011)(two year delay did not defeat succession claim.) This is especially true where, as here, there is no evidence of deception. See BPP ST v. Nichols, 2019 NY Slip Op 29057 (AT 1st Dept.).For all of the foregoing reasons, the proceeding is dismissed on the merits.Dated: 6/28/19
