This summary holdover proceeding was commenced by 6 Madison Realty Corp. (Petitioner) against Mark J. Dunston (Respondent) seeking to recover possession of 6 Madison Street, Apt. C2, Mount Vernon, New York (Subject Premises). Petitioner asserts that Respondent is a licensee no longer entitled to remain in possession after the death of his mother, Jane Elizabeth Dunston (Tenant), the last rent regulated tenant of record. The Respondent retained Legal Services of the Hudson Valley to represent him in this holdover proceeding. Respondent answered the petition and asserted affirmative defenses, including a succession claim under the Emergency Tenant Protection Act (ETPA). A non-jury trial was held in this matter on January 15, 2019. Before the trial commenced, Respondent’s attorney submitted a motion asking to withdraw from representation of Respondent due to conflicts in trial strategy. Respondent consented to the withdrawal and stated that he was prepared to defend himself. There is no dispute between the parties that Tenant died on May 11, 2019. The issue now before the Court is whether Respondent is entitled to succession rights in the apartment. The apartment in question is covered by the ETPA. C.F.R. §2503.5(d)(1) regarding succession rights to rent stabilized apartments provides: Unless otherwise prohibited by occupancy restrictions based upon income limitations pursuant to Federal, State or local law, regulations or other requirements of governmental agencies, if an offer is made to the tenant pursuant to the provisions of subdivision (a) of this section, and such tenant has permanently vacated the housing accommodation, any member of such tenant’s family, as defined in section 2500.2(n) of this Title, who has resided with the tenant in the housing accommodation as a primary residence for a period of no less than two years, or where such person is a “senior citizen,” or a “disabled person” as defined in paragraph (4) of this subdivision, for a period of no less than one year, immediately prior to the permanent vacating of the housing accommodation by the tenant, or from the inception of the tenancy or commencement of the relationship, if for less than such periods, shall be entitled to be named as a tenant on the renewal lease. Here, it is undisputed that Tenant was the tenant of record and primarily resided in the subject premises from 1964 until the date of her death on May 11, 2019. It is also established that Respondent is Tenant’s son and thus, within the category of family members entitled to succession upon proof of primary residence with his mother from May 2017 through May 2019. Therefore, the only remaining question of fact with respect to Respondent’s succession claim is whether he maintained the Subject Premises as his primary residence for this period. Respondent testified at trial that he is the son of Jane Dunston, and that he has been living in the Subject Premises since the day he was born in 1968 to the present. He testified that the only time he spent away from his home was while he was deployed in the military. Respondent stated that he is a veteran of the U.S. military, and it should be noted that he appeared in court, on the day of trial, in full military regalia. In support of his succession claim, Respondent presented a transcript of his college records from Westchester Community College that shows his attendance during the Spring and Fall of 2017. The transcript lists the Subject Premises as Respondent’s address (Exh. 2). A safe deposit box payment notice, dated December 24, 2018 from the Bank of America was also introduced into evidence by Respondent (Exh. 1). This statement for the rental period of January 27, 2019 to January 26, 2020 lists the Subject Premises as Respondent’s address. In further support of his succession claim, Respondent presented two New York State Driver’s Licenses in his name (Exh. 3). The first was issued on March 16, 2011, expiring April 16, 2019 and the other issued January 16, 2019, expiring April 16, 2027. Both licenses list his address as the Subject Premises. Lastly, Respondent presented rental insurance for the Subject Premises from Liberty Mutual for the period from August 23, 2018 through August 23, 2019 (Exh. 5). The policy named Respondent and his deceased mother as the policyholders. Respondent testified that he did not have any utility bills for the subject premises in his name, as all utility bills remained under his mother’s name until after her death. He also stated that he never paid for any rent while living at the premises. Respondent acknowledged on cross examination that Tenant owned a two family house in the City of Mt. Vernon. He denied, however, living there, and maintained that he has always resided at the Subject Premises. A former resident of the building, Charon Lamar Clay, testified on behalf of Respondent. Mr. Clay testified that he had lived on the second floor in the subject building across the hall from Respondent and Tenant until December 2019 when he moved out. Mr. Clay further testified that he has known the Respondent for thirteen years, and during that period of time the Respondent always resided and lived across the hall from him. Mr. Clay stated that on a few occasions in the last two years before the Tenant died, he would see Respondent in the apartment whenever he helped Tenant with groceries into the Subject Premises. The next witness called by Respondent was Barbara Higgins who testified that she has known Respondent and Tenant for thirty or forty years from living in the neighborhood, and is not aware of any other addresses for the Respondent. She was unable, however, to testify that she ever saw the Respondent inside the subject apartment in the last two years, only witnessing him go inside the building. Mr. Vincent Battaglia, principal owner of the Petitioner, testified that he was not aware of anyone other than the Tenant residing in the Subject Premises prior to her death in May 2019. He testified that the Respondent was never listed on any lease nor any lease renewals shown in the exhibit entered into evidence as Petitioner’s B and C. Mr. Battaglia acknowledged that in 2017 he had one communication with Respondent in regards to a car incident that occurred outside the subject building. He testified that it was only after Tenant had passed away that he was made aware that Respondent was claiming to have been residing in the Subject Premises. Upon the completion of the trial, the Court directed the parties to submit post-trial memoranda of law addressing the instant issue/defense. After a review of the memos presented, testimony adduced at trial, the exhibits submitted in evidence, all relevant statutes and caselaw, the Court finds in favor of Respondent. The burden of presenting legally sufficient proof to establish contemporaneous residency with the tenant rests with the party claiming succession rights (see Gottlieb v. Licursi, 191 AD2d 256 [1993]). The traditional indicia of primary residence, including driver’s license, voter’s registration, tax returns, telephone and bank records, would be competent evidence to establish a period of residency. In a bench trial, the fact-finding court must make its determination based on a fair interpretation of the evidence, including making credibility determinations as to the testimony offered. 409-411 Sixth Street, LLC v. Mogi, 22 NY3d 875 (2013); 135 West. 13 LLC v. Stollerman, 151 AD3d 598 (1st Dept 2017); 300 East 34th Street Co. v. Habeeb, 248 AD2d 50 (1st Dept 1997). Where a party makes a prima facie showing of a succession claim, the burden shifts to the party opposing succession to rebut the prima facie showing with contrary evidence. See 585 W. 204th LLC v. Peralta, 53 Misc 3d 131(A) (App Term, 1st Dept 2016) (affirming trial court finding of succession based primarily on testimony that was “essentially unrebutted by any witness with factual knowledge”); Kelly Mgt LLC v. Soltero, 27 Misc 3d 984 (Civ Ct, Bronx County 2010) (succession granted where no showing was made to rebut respondent’s sworn testimony and documentary proof of familial relationship and qualifying co-residency); Partita Partners LLC v. Mo Ling Lam, 21 Misc 3d 1101(A) (Civ Ct, New York County 2008) (no rebuttal proof presented to challenge foreign documents accepted by federal government in granting respondent permanent resident visa). However sparse the documentary evidence may be, Petitioner failed to rebut Respondent’s sworn claim that he had lived at the premises since he was born, other than his stint in the military. Respondent has thus met his affirmative obligation to establish succession rights to the rent regulated tenancy. The record shows that Respondent resided there as a primary resident for the requisite two-year period immediately prior to his mother’s death in May 2019. The limited documentary evidence presented by Petitioner does not, in these circumstances, preponderate over plausible and credited testimonial and documentary evidence. Petitioner’s contention that Respondent lived at his mother’s residence at another location in Mt. Vernon is not supported by any testimonial or documentary evidence. Moreover, the Court is also accepting the credible testimony of Respondent, and his nonpartisan witnesses, particularly since that testimony was essentially unrebutted by any witness with factual knowledge. Based upon the totality of the credible evidence presented at trial, the Court finds that Respondent primarily resided in the Subject Premises with the Tenant, his mother, from his birth until her death in 2019, save for when he was deployed in the military. As such, Respondent has proven that he is the successor tenant of the Subject Premises, not a licensee. Accordingly, this licensee holdover is dismissed with prejudice. The Court does not address any other issues raised in Respondent’s answer. This constitutes the decision and order of this Court, copies of which are being sent to all parties. Dated: February 10, 2020 Mount Vernon, New York
