11 Misc. 3d 14 | N.Y. App. Term. | 2005
Dissenting Opinion
(dissenting). The issue on this appeal is whether appellant established her right to succeed to the rent-stabilized apartment of her grandmother. I agree with the trial court that she did not and would affirm the judgment in favor of landlord.
The right to succeed to a rent-stabilized tenancy is not automatic. The result imposed by the majority herein “would
Knibb’s deceitful conduct herein, designated by the majority as “relatively short-lived,” consisted in not only intentionally shielding her presence in the apartment from the landlord for many years prior to her grandmother’s death, but also in forging her deceased grandmother’s signature on a renewal lease in May 2000 and on a second renewal lease two years later in May 2002. The deceit ceased only upon its discovery. While Knibb had a right to be named as a tenant on the renewal lease issued after her grandmother’s death (see Rent Stabilization Code [9 NYCRR] § 2523.5 [b] [1] [Code]), she failed to exercise that right. The Code does not prescribe that the right to be so named continues beyond the first renewal lease required to be offered by the landlord. Indeed, even a tenant who does not timely execute a renewal lease is subject to eviction. (See Rent Stabilization Code [9 NYCRR] § 2523.5 [c] [3].) Although Knibb asserted that her grandmother had instructed her to sign the grandmother’s name on renewal leases, and that she was merely following her grandmother’s instructions, by failing to notify the landlord of her grandmother’s death, Knibb obviously knew that she was engaged in a pattern of deception. The motive for her illegal conduct is not clear, but perhaps she was trying to avoid any obligation under the lease had she decided to vacate the apartment and live elsewhere. Under that circumstance, the estate of her grandmother would have been liable for the rent, not Knibb. (See 245 Realty Assoc. v Sussis, supra, 243 AD2d at 36.)
The integrity of the rent stabilization scheme is threatened not only by tenants who sublet at a profit (see e.g. Matter of 151-155 Atl. Ave. v Pendry, 308 AD2d 543 [2d Dept 2003]), but also by persons such as Knibb who rely on deception and forgery
The final judgment of possession in favor of the landlord should be affirmed, with costs.
Davis and Gangel-Jacob, JJ., concur. Suarez, EJ., dissents in a separate memorandum.
Lead Opinion
OPINION OF THE COURT
Final judgment, entered January 21, 2004, reversed, without costs, and final judgment of possession is granted in favor of respondent Knibb dismissing the petition.
The evidence plainly demonstrated, and the trial court expressly found, that respondent Knibb moved into the apartment premises to care for her infirm grandmother (the record tenant) in 1991 and continuously resided there as a primary resident until her grandmother’s death in December 1999, thus establishing respondent’s right to succeed to the rent-stabilized tenancy (see Rent Stabilization Code [9 NYCRR] § 2523.5 [b]). Nor was it shown, on this record, that respondent forfeited her succession rights otherwise firmly established by concealing her occupancy from petitioner for a two-year period following her grandmother’s death through the submission of renewal leases bearing her grandmother’s forged signature (cf. Garner v Popolizio, 171 AD2d 539 [1991]). In view of respondent’s persuasive showing of a long-term co-occupancy with her grandmother, as specifically found by the trial court, and the relatively short-lived duration of respondent’s misrepresentations, any fraud or irregularities committed in the aftermath of the grandmother’s death cannot reasonably be said to have caused petitioner any discernible prejudice in the prosecution of its eviction claim. Hughes v Lenox Hill Hosp. (226 AD2d 4 [1996], lv dismissed in part and denied in part 90 NY2d 829 [1997]), cited by the trial court in support of its conclusion that respondent waived her right to succession, is clearly distinguishable, since it involved a succession claim by a family member who for seven years “reside [d] somewhere other than the regulated housing accommodation and thus [made] no immediate use of the premises” (at 15).
Garner v Popolizio (171 AD2d 539 [1st Dept 1991]), cited by the majority, is not to the contrary. There, the Appellate Division merely held that under the specific rules of the Housing Authority, Garner was entitled to a hearing at which his right to succeed to his deceased mother’s tenancy might be established, writing,
“We do not believe that any fraud or irregularity committed some months after the death of the tenant of record necessarily precludes a finding, within the meaning of the Housing Authority’s rules, that petitioner was ‘known’ as a resident of the premises by participation in project activities. If established, the fact that petitioner may have misrepresented his status and that of his deceased mother is, at most, only one factor to be considered in determining whether petitioner qualified as a remaining family member.” (Id. at 541.)