PROCEDURAL HISTORY AND BACKGROUND This is a licensee holdover proceeding brought by petitioner against Markyus O’Neill (“respondent”) after the death of the rent stabilized tenant of record, Scott Anderson (“Mr. Anderson”). The tenant of record’s last renewal lease expired on December 21, 2021. (NYSCEF Doc No. 13, exhibit A to petitioner’s motion sequence 1.)1 Petitioner served respondent with a licensee notice to quit pursuant to Real Property Actions and Proceedings Law (“RPAPL”) 713 (7), and subsequently with a notice of petition and petition. (NYSCEF Doc No. 1, petition; NYSCEF Doc No. 2, notice of petition, NYSCEF Doc No. 6, affidavit of service of notice of petition and petition.) Respondent filed an answer, verified by his attorney, on March 21, 2022. (NYSCEF Doc No. 8.) Respondent raised the following defenses: failure to properly serve the predicate notice and the notice of petition and petition (third and fourth affirmative defenses); failure to state a cause of action (first affirmative defense); failure to name the estate as a necessary party (second affirmative defense); a defense and counterclaim that petitioner has breached the warranty of habitability (fifth affirmative defense and first counterclaim); and the right to a renewal lease in his own name as a nontraditional family member (sixth affirmative defense). Petitioner moved to strike respondent’s defenses and counterclaims, and for summary judgment (NYSCEF Doc No. 9, notice of motion [sequence 1]). Respondent cross-moved for a traverse hearing and summary judgment based on improper service of the court papers, and, pursuant to CPLR 408, for discovery. (NYSCEF Doc No. 46, notice of motion [sequence 3].) It is not disputed that the former tenant of record, Scott Anderson, died on October 27, 2021 (NYSCEF Doc No. 15, petitioner’s exhibit C, death certificate), or that the lease expired two months after Mr. Anderson’s death on December 31, 2021. (NYSCEF Doc No. 19, petitioner’s exhibit G, expired renewal lease.) Petitioner argues that it has stated a cause of action, that the lease is expired, and that there is no estate to join. Petitioner contends that respondent has waived his jurisdictional claims by failing to provide a sworn statement rebutting the process server’s affidavit in that the answer was not a sworn statement made by respondent. Regarding respondent’s warranty of habitability claim, petitioner defends that the violations issued against petitioner were placed after this proceeding was commenced, that petitioner was previously unaware of the conditions, and that the conditions have been cured. Lastly, petitioner claims that respondent is a roommate who is not entitled to a lease in his own name as a nontraditional family member. (NYSCEF Doc No. 10, petitioner’s attorney’s affirmation.) Petitioner argues that “[respondent and Scott Anderson] never comingled their finances or jointly owned real or personal property, held themselves out as a family unit, executed documents formalizing legal obligations, jointly celebrated most major holidays, or attended important events with each other’s families.” (Id. 36.) Petitioner further states that the deceased tenant of record had a life partner of 25 years and that respondent is nothing more than a roommate. (Id. 31.) This statement is supported by the affidavit of Robert Romano (“Mr. Romano”), who avers that he “loved Scott Anderson.” (NYSCEF Doc No. 12, Romano affidavit 1.) They were “life partners” who met 25 years ago, and that “[d]uring the 25 years that [we] shared together, we held ourselves out as a couple, an exclusive couple (Id.
1-5.) As support for this, Romano avers that he and the deceased “traveled frequently together, never with Mr. O’Neill.” (Id. 7.) They “considered each other family and incorporated one another into each other’s immediate family.” (Id. 6.) Mr. Romano and Mr. Anderson shared cell phone accounts and credit card accounts. (Id.
