92nd St. Venture, the petitioner in this proceeding (“Petitioner”), commenced this holdover proceeding against Coner Corbett (“Respondent”), a respondent in this proceeding, and Melody M. Corbett (“Co-Respondent”), another respondent in this proceeding (collectively, “Respondents”), seeking possession of 35 West 92nd Street, Apt. 6B, New York, New York (“the subject premises”) on the ground that Co-Respondent did not renew her lease and that Respondent’s occupancy is derivative of Co-Respondent. Respondent interposed a defense that she is entitled to succeed to Co-Respondent’s tenancy. The Court held a trial of this matter on July 29, 2019, August 5, 2019, and September 9, 2019, and then adjourned the matter for post-trial submissions to October 22, 2019. The parties stipulated that Petitioner is the proper party to commence this proceeding; that Petitioner and Co-Respondent had had a landlord/tenant relationship with one another; that the subject premises is subject to the Rent Stabilization Law; that Co-Respondent no longer maintains the subject premises as her primary residence; and that Petitioner properly served the appropriate predicate notice to this proceeding. The focus of the trial was Respondent’s succession defense. The trial A concierge (“the Concierge”) of the building in which the subject premises is located (“the Building”) testified that he started working in 2014; that he works from 2:30 p.m. to 10:30 p.m.; that he has seen Respondents regularly come and go in and out of the Building from 2014 to 2017; that Co-Respondent moved out, although he’s not sure what year, maybe 2016 or 2017; and that Respondent received packages from 2015 through 2017. The Concierge testified on cross-examination that he started seeing Respondent every day a few months after he started working in June or July of 2014; and that he first thought that Co-Respondent was Respondent’s mother, but was later informed that Respondent is Co-Respondent’s niece. Respondent testified that Co-Respondent is her aunt on her father’s side; that Co-Respondent has lived at the subject premises since she can remember; that she grew up in Croton-On-Hudson with her parents; that she moved into the subject premises in March of 2014 because she wanted to start a career in illustration and animation; that she wanted to live with Co-Respondent in particular because Co-Respondent was an artist herself; that the subject premises has one bedroom; that she slept in the bedroom and Co-Respondent slept in the living room, where there was a bed; that she moved her belongings into the subject premises midway through 2017; that the doormen knew her by name; that Co-Respondent came to the subject premises on Monday nights, stayed through Tuesdays, went to a house in Rockville Centre, Long Island (“the other address”) on Wednesday mornings; that Co-Respondent came in more frequently on weekends to spend time with Respondent; that they went to the zoo, museums, movies, shopping, out to eat, or to the beach; that she had two bank accounts, one of which was only hers and one of which was a joint account with Co-Respondent which she opened in March of 2014 to dedicate to expenses for the subject premises, like rent, utilities, and groceries; that Co-Respondent did not pay the rent because of Co-Respondent’s financial situation, but that they split utilities and meals; that her relationship with Co-Respondent is very close; that she considers Co-Respondent to be a second mother since her parents moved out of state; that Co-Respondent has provided helpful guidance with her art career; that Co-Respondent helped Respondent navigate the subway; that, from January of 2015 through January of 2017, Respondent and Co-Respondent both slept in the subject premises four days a week; that Co-Respondent moved out in June of 2017 and into the other address, which her late grandmother (“Respondent’s grandmother”) had previously owned; that Co-Respondent used the service elevator to move, which tenants cannot operate without the assistance of staff of the Building; that she did not ask Co-Respondent to surrender her key when she moved because they are close and Respondent wanted Co-Respondent to be able to come to the subject premises when she wanted to; that, whenever Co-Respondent comes to New York, Co-Respondent lets her know and they try to find time to eat together; that they speak to each other once a month by phone; and that they spent Valentine’s Day, Mother’s Day, birthdays, and Saint Patrick’s Day together. Respondent introduced into evidence photographs of Co-Respondent coming to support Respondent in 2014 when Respondent got an art piece from her school into a gallery; of Respondents at a parade; and of a set-up that Respondents made for Christmas every year. Respondent testified on cross-examination that neither she nor Co-Respondent informed Petitioner that Co-Respondent lived in the subject premises; that Respondent’s grandmother died in 2013 in a nursing home two blocks from the other address; that she visited Respondent’s grandmother in the other address two to three times a year before that; that she knew that Co-Respondent spent most of her time with Respondent’s grandmother before Respondent’s grandmother died; that Co-Respondent paid the mortgage and cable for the other address; that she and Co-Respondent communicated with a lawyer who specialized in landlord/tenant law around the time that Respondent was thinking about moving to New York and after Respondent moved into the subject premises; that Respondents opened their joint account after consultation with the attorney; that she saw Co-Respondent two times a year before moving to the subject premises and a few times a year after Co-Respondent moved out of the subject premises; that she and Co-Respondent didn’t go on vacations together; that she testified at a deposition that she moved into the subject premises in 2015 because she was confused about dates; that she used her own bank account for personal purchases after Respondents opened their joint account; that Co-Respondent did not move pets from the other address to the subject premises after Respondent’s grandmother died; and that Co-Respondent would be at the other address on Monday mornings, would come to the subject premises on Monday nights, would go to the other address during the day on Wednesdays, would return to the subject premises on Wednesday nights, and would go to the other address on Friday mornings. Respondent testified on redirect examination that, when Co-Respondent went to the other address, she took a change of clothing, toiletries, and some decor. A death certificate in evidence shows that Respondent’s grandmother died on May 18, 2013. A deed in evidence dated April 21, 2017 shows Co-Respondent as the grantee of the other address, with Co-Respondent and Co-Respondent’s father as the grantors. Bills in evidence from an animal hospital were sent to Co-Respondent at the other address on March 13, 2015, May 21, 2015, August 1, 2015, and July 11, 2016. The nursing home that housed Respondent’s grandmother before she died listed Co-Respondent as an emergency contact, with the other address as Co-Respondent’s address. According to a complaint verified on February 25, 2016, Respondent’s uncle and Co-Respondent’s brother (“Respondent’s uncle”) commenced an action against Co-Respondent in Nassau County Supreme Court, seeking partition, alleging that Co-Respondent owns the other address as a tenant in common with Respondent’s uncle. A stipulation settling that action dated March 24, 2017, inter alia, gave Co-Respondent exclusive use of the other address. Letters to Co-Respondent from her attorneys in this partition action dated December 16, 2014, April 7, 2015, August 26, 2015, October 7, 2015, November 20, 2015, February 9, 2016, March 31, 2016, May 6, 2016, July 28, 2016, August 30, 2016, September 26, 2016, October 31, 2016, November 29, 2016, December 23, 2016, February 24, 2017, and March 27, 2017 were all addressed to Co-Respondent at the other address. Co-Respondent’s bank statements for the months from October of 2013 to October of 2016 were sent to her at the other address. A friend of Co-Respondent (“Co-Respondent’s friend”) testified that she has known Co-Respondent since 1969; that Co-Respondent lived in the subject premises four years before her testimony on July 29, 2019; that every two or three months Co-Respondent met her at a neighborhood restaurant and Respondent would join them; that Co-Respondent talked about Respondent for years; that she met Respondent after Respondent graduated from college; that nothing happened to Respondents’ relationship when Respondent moved into the subject premises; that they remained close; and that Co-Respondent moved out of the subject premises in 2018. Co-Respondent introduced her voter’s registration into evidence, which showed that Co-Respondent voted at the subject premises on November 4, 2014, April 19, 2016, and November 8, 2016. Co-Respondent’s tax returns in evidence, signed by Co-Respondent on April 17, 2016 for 2012, 2014, and 2015 list the subject premises as Co-Respondent’s address and her tax return for 2016, signed on March 27, 2017, lists the other address as Co-Respondent’s address. Co-Respondent’s New York tax return for 2016 states that Co-Respondent did not maintain living quarters in New York City during 2016. Tax forms, such as 1099′s or W-2′s for Co-Respondent in 2015 and 2016 list the subject premises as her address. Co-Respondent introduced into evidence invoices for her artwork listing the subject premises as her address dated February 14, 2014, July 1, 2014, September 11, 2014, November 11, 2014, April 23, 2015, June 30, 2015, November 2, 2015, June 23, 2016, August 14, 2016, September 23, 2016, and January 24, 2017, and the other address on April 18, 2017. Respondent introduced into evidence a receipt for a move dated June 21, 2017 to move the “entire contents of apt.” Respondent introduced into evidence a number of documents showing her residency at the subject premises, including her driver’s license, voter’s registration, a jury duty summons, her food vendor license, her W-2 forms, documentation regarding her dentist, online food and product deliveries, and documentation of debit card and ATM activity in Manhattan. Respondents introduced into evidence Co-Respondent’s will, executed June 8, 2017, which leaves her entire estate to Respondent. Documentation of Co-Respondent’s credit card, debit card, and ATM activity and documentation of Co-Respondent’s use of public transportation show that Co-Respondent was often present in both New York City and Long Island, somewhat evenly divided. Respondent’s friend (“Respondent’s friend”) testified that she and Co-Respondent became friends shortly after moving to New York in September of 2015; that she saw the subject premises and saw two beds there, one in the living room and one in the bedroom; that Respondents’ relationship with one another was good; and that sometimes when she wanted to see Respondent, Respondent couldn’t because Respondent had plans with Co-Respondent. Co-Respondent testified that she lived in the subject premises from 1971 to 2017; that Respondent moved into the subject premises in 2014; that Respondent is her niece, i.e., her brother’s daughter; that she has six nieces and nephews; that she has a “nice working relationship” with her nieces and nephews; that her relationship with Respondent is very close; that Respondent fulfills her dreams; that she executed a will for the first time in 2015 or 2016; that she knew that Respondent had an appreciation for Co-Respondent’s personal property that others didn’t have; that she has a pet bird that she brought to live at the other address when Respondent’s grandmother’s illness progressed to the point that required Co-Respondent’s increased presence at the other address; that Respondent’s grandmother developed a connection with Co-Respondent’s pet bird; that she took care of Respondent’s grandmother’s cat at the other address after Respondent’s grandmother died; that after Respondent’s grandmother died, Co-Respondent spent four days a week in New York, while spending Wednesdays and weekends at the other address, in part to feed the animals; that she obtained title to the other address after litigation with Respondent’s uncle; that she got the money to buy out Respondent’s uncle by way of a reverse mortgage; that her mortgage broker insisted that Co-Respondent change her address on her tax returns to list the other address; that she let Respondent sleep in the bedroom of the subject premises because of the time that Co-Respondent spent at the other address; that, after Respondent moved into the subject premises, Co-Respondent’s relationship with Respondent improved to the point where they were very close and went out for dinner, drinks, and on birthdays; that she liked the idea of being a mentor for Respondent; that Respondent paid the rent because Co-Respondent was maintaining the other address, and because Co-Respondent was broke; that Respondents used their joint account to pay a Con Edison bill and to buy groceries and cleaning supplies for the subject premises; that Respondent and she went to movies, restaurants, the zoo, museums, musical performances, and a parade; that Respondent spent Christmas and Thanksgiving out of state with Respondent’s parents; that she moved to the other address in June of 2017 because she was told to; and that she changed her non-driver’s identification card from the subject premises to the other address in August of 2016 because her mortgage broker told her to. Co-Respondent testified on cross-examination that she did not visit Respondent in college in Boston before Respondent moved into the subject premises; that Respondents did not travel together; that Respondent’s grandmother lived in a nursing home two blocks from the other address for nine months before Respondent’s grandmother died; that Co-Respondent gave the nursing home the other address as Co-Respondent’s address; that Respondents opened a joint bank account before Respondent moved in after consulting with an attorney; that Respondents have no power of attorney or health care proxies executed for one another; that Respondent is not a representative payee of Co-Respondent’s Social Security income; that the pets at the other address require treatment by a veterinarian near the other address; that she could not bring the pets to the subject premises; and that after Respondent’s grandmother died, Co-Respondent spent a majority of her time in the other address. Co-Respondent testified on redirect examination that she has not traveled outside of the New York area in seven years; that the bird in the other address could go two to three days without food; that she made sure that the cat at the other address got fed every day, by paying her sister-in-law to stop in when Co-Respondent couldn’t come; that she thought she had to give the nursing home the other address in order to get Respondent’s grandmother admitted there; that she used an attorney in Long Island to litigate over the other address; and that she gave the other address to her attorney because of the attorney’s location. Discussion In order to be deemed a “family member” for succession purposes, Respondent bears the burden of proving emotional and financial commitment and interdependence between her and Co-Respondent. 9 N.Y.C.R.R. §2520.6(o)(2). Evidence of the “dedication, caring and selfsacrifice” between members of a non-traditional family relationship can control the Court’s determination. Matter of 530 Second Ave. Co., LLC v. Zenker, 160 AD3d 160, 162-63 (1st Dept. 2018). By contrast, evidence of even a close friendship, by itself, does not suffice to show the kind of an emotional commitment that characterizes a non-traditional family relationship. See, e.g., Seminole Realty Co. v. Greenbaum, 209 AD2d 345, 345-46 (1st Dept.1994), leave to appeal dismissed, 85 NY2d 922, 922 (1995), First Sutton Assocs. v. Hoffman, 14 Misc 3d 102, 103 (App. Term 1st Dept. 2007), Riverview Dev. Holding Corp. v. Doe, 8 Misc 3d 132(A)(App. Term 1st Dept. 2005), 66 W. 69th St. LLC v. Norton, 2017 NYLJ LEXIS 2878, *9 (Civ. Ct. NY Co.). The most glaring evidence that Respondents did not share such an emotional commitment and interdependence was that Respondents saw each other only two times a year before Respondent moved into the subject premises and, three years later, saw each other only a few times a year after they represented that Co-Respondent moved out of the subject premises. They also only talked on the phone once a month after they testified that Co-Respondent moved. A lifetime relationship of casual personal contact that bookends a three-year interlude according to which Respondents assert that they lived together belies the kind of emotional commitment and interdependence Respondents must prove and furthermore outweighs the probative value of a joint bank account used for limited purposes.1 Even assuming arguendo that Respondents proved a non-traditional family relationship with one another, Respondents must prove that both of them resided with each other for two years prior to Co-Respondent’s permanent vacatur, 9 N.Y.C.R.R. §2523.5(b)(1), entailing an analysis similar to that of a nonprimary residence determination. See 585 W. 204th LLC v. Peralta, 53 Misc 3d 131(A)(App. Term 1st Dept. 2016). While a number of criteria showed that Co-Respondent had relocated to the other address at the time leading up to Respondent’s grandmother’s passing, taking care of an ailing relative does constitute an excusable absence from a rent-stabilized apartment for primary residence purposes. 542 E. 14th St. LLC v. Lee, 66 AD3d 18, 19 (1st Dept. 2009), Second 82nd Corp. v. Veiders, 51 Misc 3d 142(A)(App. Term 1st Dept. 2016), 422 E. 9th LLC v. Patton, 29 Misc 3d 137(A)(App. Term 1st Dept. 2010), Lance Realty Co. v. Fefferma, 5 Misc 3d 134(A)(App. Term 1st Dept. 2004), Kalimian v. Holmberg, 2001 NY Misc. LEXIS 958 (App. Term 1st Dept. 2001). A rent-stabilized tenant’s can prove that an absence was excusable when, inter alia, the tenant resumes occupancy of the regulated premises. WSC 72nd Owners LLC v. Bondy, 21 Misc 3d 145(A)(App. Term 1st Dept. 2008). Co-Respondent, however, continued to maintain a connection to the other address after Respondent’s grandmother passed. Co-Respondent left her pets in the other address. Co-Respondent spent approximately half of her time at the other address. Rather than sell the other address and divide the proceeds between her and her two siblings, who all owned the other address as tenants-in-common, Co-Respondent litigated against a sale of the other address so that she could live at the other address. Co-Respondent filed her taxes for 2016 by a return signed in March of 2017 using the other address as her address, which is probative that the other address is her primary residence, Glenbriar Co. v. Lipsman, 5 NY3d 388, 392-393 (2005), Second 82nd Corp. v. Veiders, 146 AD3d 696 (1st Dept. 2017), 542 E. 14th St. LLC, supra, 66 AD3d at 22-23, 317 Magnone LLC v. Gumina, 55 Misc 3d 142(A)(App. Term 1st Dept. 2017), 422 E. 9th LLC, supra, 29 Misc 3d at 137(A), 300 W. 106th St. Corp. v. Rosenthal, 9 Misc 3d 1101(A)(Civ. Ct. NY Co. 2004), aff’d, 10 Misc 3d 137(A)(App. Term 1st Dept. 2005), Boulder Apartments, LLC v. Raymond, 59 Misc 3d 141(A)(App. Term 2nd Dept. 2018), so that she could get a reverse mortgage on the other address to secure a settlement enabling her to live in the other address. Co-Respondent changed her non-driver’s license to reflect the other address as her address in August of 2016. Co-Respondent’s attorneys in the partition action communicated with her by letters mailed to the other address. The level of connection Co-Respondent maintained with the other address, pre-dating Respondent’s occupancy of the subject premises and continuing through and after the resolution of the litigation with Respondent’s uncle, is not consistent with Co-Respondent’s maintenance of the subject premises as her primary residence. The Court therefore awards Petitioner a final judgment of possession against Respondent and Co-Respondent. Issuance of the warrant of eviction is permitted forthwith, execution thereof stayed through December 31, 2019 for Respondents to vacate possession. Upon default, the warrant of eviction may execute after service of a marshal’s notice. The parties are directed to pick up their exhibits within thirty days or they will either be sent to the parties or destroyed at the Court’s discretion in compliance with DRP-185. This constitutes the decision and order of this Court. Dated: November 6, 2019 New York, New York
