BACKGROUND

This summary holdover proceeding was commenced by 585 WEST 204TH LLC (Petitioner) against NESTOR PERALTA (Respondent) seeking to recover possession of 585 West 204th Street, Apt. 2F, New York, NY 10034 (Subject Premises) based on the allegation that Respondent is the licensee of Altagracia Peralata (Tenant), the last rent control tenant of record, and that after Tenant's death, Respondent is no longer entitled to remain in possession of the Subject Premises. JOSE PERLATA(Peralta) is Respondent's father and an occupant of the Subject Premises. Respondent, is the son of Tenant, and the primary issue for the court to determine is whether he is entitled to succeed to the tenancy of Tenant.

On June 18, 2014, Petitioner moved for leave to amend the pleadings to change "John Doe" to "Jose Peralta" and for leave to conduct discovery. The motion was granted, pursuant to a stipulation and the proceeding was adjourned to July 28, 2014, as a control date for compliance with discovery. On July 28, 2014, the proceeding was marked off calendar for continued discovery.

On December 16, 2014, Petitioner's motion to restore was granted and the proceeding was adjourned to January 20, 2015 for trial. On January 20, 2015, the proceeding was assigned to Part L for trial and the trial commenced. The trial continued on January 21, and concluded on February 24, 2015. At the conclusion of the trial, the court reserved decision.

Petitioner is the owner of the subject building pursuant to a deed dated March 28, 2014 (Ex 1). Altagracia Silverio a/k/a Altagarcia Peralta was the rent control tenant of record, pursuant to a lease dated August 30, 1968 (Ex 4) and was registered as the rent control tenant of record with DHCR in 1984 with a rent of $137.76 (Ex 3). There is a valid MDR for the building (Ex 2). Tenant died November 26, 1997 (Ex 5).

At the commencement of the trial on January 20, 2015, Respondent asserted a defense of succession to Tenant, who was his mother. It is uncontested that Respondent is the son of Tenant and that Tenant was residing in the Subject Premises through the time of her death in November 1997. Therefore, the only remaining factual issue of Respondent's succession claim is whether Respondent lived with Tenant in the Subject Premises as his primary residence from November 1995 through November 1997.

Respondent testified on his own behalf. Respondent is thirty-seven years old, and was born in Bellevue Hospital in Manhattan on August 10, 1977, and is the son of Tenant and Peralta (Ex B) . Respondent lived in the Subject Premises from birth until he was incarcerated in 1998.Respondent submitted a transcript from a school he attended which listed the Subject Premises as his address as of April 14, 1993. Respondent later attended Julia Richmond School. Respondent did not graduate, but obtained a GED while incarcerated.

Between 1994 and 1997, Respondent was not employed, and had no bank accounts. Respondent testified that he attempted to secure records showing the Subject Premises was his primary residence during this period from Con Edison, but could not do so because the records dated back to 1995 through 1997.

After Tenant's death, from February 1998 through February 1999, Respondent was incarcerated. In February 1999, Respondent was released from prison on a work release program. For the next twelve months, Respondent worked for Canada Dry Bottling Company in Maspeth, Queens County. After one year in the work release program, in 2000 Respondent was released on parole.

In early 2000, Respondent was remanded back into custody for several months, based on an incident which took place at the Subject Premises and pursuant to which he was deemed to have violated his parole. Later that year, Respondent was released.

After that Respondent had some periods of unemployment, some short term jobs and a period where he worked "off the books."

A few months after Respondent's release, his girlfriend got pregnant and at her request he started staying with her in Corona Queens. The Corona Premises was a one bedroom apartment in a private home. Respondent paid rent for the premises in Corona, and assisted his girlfriend, but the lease for the Corona Premises was not in Respondent's name. Respondent did not move any of his belongings into the Corona Premises. Respondent's girlfriend gave birth to a daughter on February 26, 2001 named Grace Peralta. Respondent remained in Corona for the first year after his daughter's birth. There are no custody or support orders pertaining to Respondent's daughter, who lives in Queens. During the period that Respondent lived in Corona, he gave money to Peralta for rent for the Subject Premises, and maintained all his belongings at the Subject Premises.

Tenant and Peralta were married in Manhattan in 1971. Their marriage certificate lists the Subject Premises as their address (Ex E). Peralta lived with Tenant and Respondent in the Subject Premises until 1988, when Peralta moved to Queens. Peralta and Tenant divorced in 1991 (Ex C). Immediately after Tenant's death, Peralta returned to live in the Subject Premises, and since that time both Respondent and Peralta have lived in the Subject Premises together.

At the time of Tenant's death, Respondent was approximately 19 years old. Respondent did not notify Petitioner of Tenant's death, but Peralta did. In the months between Tenant's death and Respondent's incarceration, Respondent paid rent to Lemle & Wolf, an agent for the landlord, in the name of Peralta. Respondent was the beneficiary of Tenant's life insurance policy and used those proceeds for rent payments. During Respondent's incarceration, Peralta had a power of attorney for Respondent's account, Peralta used the funds to pay the bills for Respondent, including rent for the Subject Premises.

From 2001 forward, Respondent paid the rent for the Subject Premises, in money orders that listed Tenant's name.

In 2007 and 2008 documents were submitted by Peralta to Petitioner (See eg Exs 7 & 8). Respondent's handwriting appears on these documents because Respondent assisted his father who was not fluent in English.

The landlord's rent records for the period of 2009 through 2014 list Peralta as the tenant of record for the Subject Premises (Ex A). Other mail sent to the Subject Premises from the landlord during this period was addressed to "Current Occupant" and did not list the name of any tenant (Exhibits 7 & 8).

Peralta is 74 years old and also testified at the trial. Peralta testified that he has lived in the Subject Premises for approximately 40 years, except for the years between his divorce from Tenant and her death. Peralta acknowledged that he had written notes on his hand about the dates Respondent resided in the Subject Premises, was incarcerated and stayed with his girlfriend, to assist him with his testimony on the date he testified because his memory is not good. Based on this, the court can not give any weight to Peralta's testimony as to the dates that Respondent was living in the Subject Premises.

Peralta notified the landlord of Tenant's death, and the landlord asked Peralta to show a marriage certificate, which he did in or about 2010 (Ex E). Peralta also provided Petitioner with a divorce decree (Ex C). Peralta can not read or write in English.

An abstract of Respondent's Driving record from DMV was submitted into evidence (Ex 12). It lists the Subject Premises as Respondent's address for the period of 1995 to August 2000. In August 2000, it lists 5121 103rd Street, Apartment 2R as Respondent's address, and then from 2006 forward, the Subject Premises is listed as Respondent's address.

It was uncontested at trial that since 1971 the only people who lived in the Subject premises were Tenant, Peralta and their children. The Subject Premises has been the home of the immediate family for over four decades.

DISCUSSION

... the city rent agency shall not issue an order granting a certificate of eviction, and any member of the tenant's family, as defined in paragraph (3) of this subdivision, shall not be evicted under this section where the tenant has permanently vacated the housing accommodation and such family member has resided with the tenant in ths housing accommodation as a primary residence for a period of no less than two (2) years .... immediately prior to the permanent vacating of the housing accommodation by the tenant ...

Respondent has the burden of establishing by a preponderance of credible evidence that he lived in the Subject Premises with Tenant as his primary residence for two years prior to her death (Gottlieb v Licursi 191 AD2d 256). The court found Respondent to be a very credible witness and credits his testimony regarding his residence with his mother for the two years prior [*2]to her death.

The record is scant regarding documentation from November 1995 to November 1997, primarily because of the gap of 17 years in between the death of Tenant and the commencement of this proceeding. Most of the evidence presented at trial by both Respondent and Petitioner related to periods after the death of Tenant, and therefore can not be considered by the court in determining Respondent's succession claim [72A Realty Associates v Kutno 15 Misc 3d 100].

Petitioner presented no witnesses with knowledge of this period. Petitioner only acquired the Subject Premises in 2014. Respondent's credible testimony that he resided in the Subject Premises with his mother during the relevant period is therefore essentially unrebutted. The testimony is further supported by DMV record (Ex 12) which lists the Subject Premises as his address for 1995 through 1999, and Respondent's school records.

Additionally the Subject Premises remained Respondent's primary residence through the period of his incarceration. It is well settled that the rights of tenants are not extinguished by their incarceration. The New York State Constitution provides that no "... person shall be deemed to have gained or lost a residence, by reason of his presence or absence .... while confined to any public prison ( NY Constitution, article II, § 4; see also Matter of Corr v. Westchester County of Dept. of Social Services, 33 NY2d 111, 350 N.Y.S.2d 401, 305 N.E.2d 483)."

In the context of rent regulated tenancies, these protections have been deemed to provide that absence form a rent regulated apartment due to incarceration is excusable and does not preclude the assertion of rights under rent regulation [Kelly Mgt. LLC v. Soltero, 27 Misc 3d 984, 898 N.Y.S.2d 415(absence from rent regulated apartment for four years did not preclude succession defense)].

Moreover, Petitioner's predecessor in interest, or previous landlord's clearly were on notice at least by 2010, if not earlier, that Tenant was deceased. There would have been no other reason for Peralta to obtain a certified copy of his marriage certificate in 2010, nearly a decade after his divorce from Tenant, and years after Tenant had passed except to submit it to the landlord, as he testified. Peralta's testimony in this regard is supported by the rent ledger addressed to him as Tenant for the period of 2009 through 2014, when Petitioner purchased the Subject Premises.

Additionally both Respondent and Peralta have limited education, and are of modest means, thus the lack of documentation from 17 years ago is understandable, as is their uncertainty about how to assert rights to the Subject Premises after the death of the Tenant and in the face of the obstacles set by the prior landlord(s).

The fact that Respondent left the Subject Premises for approximately one to two years around the time his daughter was born, and years after the death of the Tenant, has no bearing on his claim to succession as of November 1997.

Based on the foregoing, the court finds that Respondent established by a preponderance [*3]of credible evidence that he primarily resided at the Subject Premises with Tenant for the two years prior to tenant's death and as of November 1997 Respondent became the rent controlled tenant of record for the Subject Premises.

CONCLUSION

Based on the foregoing, the petition herein is dismissed.

This constitutes the decision and order of the Court.^[FN1]

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