Opinion
086099/06.
Decided July 22, 2008.
Belkin Burden Wenig Goldman, New York City (David M. Skaller of counsel), for petitioner.
Sperber Denenberg Kahan, P.C., New York City (Steven B. Sperber of counsel), for respondents.
In this nonprimary residence proceeding, petitioner, PCV St Owner LP, alleges that James M. Shelley and the late Sally S. Shelley no longer reside at the subject premises, Apartment 11G located at 510 East 23rd Street in New York County. Both petitioner and respondent agree that Sally Shelley, Ward Shelley's stepmother, is deceased. Ward M. Shelley, James Shelley's son, interposes a claim for succession rights to the subject premises.
After a trial, the court finds that Ward Shelley has not met the statutory requirements for succession. First, he never co-occupied the subject premises for two years with James or Sally Shelley. ( See 9 NYCRR 2523.5 [b] [1].) Even if the court accepts September 2007 asWard Shelley's date for James Shelley's permanent vacatur, petitioner must still prevail because Ward Shelley did not co-occupy the subject premises with his father or stepmother for two years. Second, Ward Shelley resided at the subject premises only after James Shelley permanently vacated in October 2004. Ward Shelley resided during the Golub period not at the subject New York County premises but at 427 Manhattan Avenue, Floor 1, in Kings County; 98 Wells Hill Road, Easton, Connecticut; and 6595 Manasota Key Road, Englewood, Florida. The great weight of the evidence, including tax returns, credit-card and bank statements, mail, and Ward Shelley's personal Web site, refutes his claim of succession.
On March 31, 2004, James and Sally Shelley signed a two-year lease renewal commencing on August 1, 2004, and expiring on July 31, 2006. On April 20, 2006, petitioner ] served respondents with a combined Golub notice as a result of James and Sally Shelley's alleged failure to occupy the subject New York County premises as their primary residence. ( See 9 NYCRR 2524.2 [c] [2]; Atlantic Westerly Co. v Cohen, NYLJ, Oct. 5, 2005, at 18, col 1 [Hous Part, Civ Ct, NY County].)
The issue is whether Ward Shelley has succession rights to the subject New York County premises. Succession may be granted when the successor family member has co-occupied the premises as a primary residence for no less than two years with a record tenant who has permanently vacated the premises. ( 9 NYCRR 2523.5 [b] [1]; United E. LLC v Churi , 19 Misc 3d 604 , 604 [Hous Part, Civ Ct, NY County 2008].) The burden of proving succession lies with the successor family member. ( 9 NYCRR 2523.5; S. Pierre Assocs. v Mankowitz, 17 Misc 3d 53, 54 [Hous Part, Civ Ct, NY County 2007].)
In November 2004, while in Florida, James Shelley became ill and never returned to the subject New York County premises. Ward Shelley claims that he co-occupied the subject New York County premises from 1998 until James Shelley's permanent vacatur and is therefore entitled to succession rights. But Ward Shelley never co-occupied the subject New York County premises with James Shelley, and he did not begin to reside at the apartment until July or August 2005. The court rejects petitioner's first argument — that succession is moot because James Shelley never vacated the subject New York County premises.
An exception to the two year co-occupancy requirement for succession arises when the non-successor family member temporarily relocates for medical treatment. ( 9 NYCRR 2523.1 [b] [2] [v].) Because James Shelley never returned from Florida after November 2004 and because Ward Shelley did not occupy the subject New York County premises until July or August 2005, this exception does not apply.
Several pieces of evidence support petitioner's claim that Ward Shelley did not reside at the subject New York County premises before July or August 2005. Petitioner first offers James and Sally Shelley's 2005 Division of Housing and Community Renewal form. The form, signed by Sally Shelley, lists Ward Shelley's occupancy in the subject New York County premises as having commenced on August 1, 2005. Additionally, Ward Shelley is listed as an emergency contact on the March 31, 2004, lease renewal agreement. His listed address on that renewal is the Brooklyn premises rather than the subject New York County premises. Only on July 27, 2005, in a letter to the petitioner, did James and Sally Shelley request that Ward Shelley be added to the lease as an occupant.
Petitioner claims that Ward Shelley resided at the Brooklyn premises before summer 2005. According to Ward Shelley, the Brooklyn premises was used as a commercial space in his capacity as an artist and was unsuitable for long-term habitation. But Ken Butler, the landlord of the Brooklyn premises, testified that the Brooklyn premises was habitable — it had a bed and refrigerator — and Ward Shelley himself admitted to spending some nights there. Butler also testified that the prior tenant of the Brooklyn premises lived there.
Even if Ward Shelley did not reside at the Brooklyn premises, this does not prove that he resided at the subject New York County premises. He also resided in Connecticut and Florida between 1998 and 2005. Petitioner introduced at trial Ward Shelley's Connecticut driver's license and car registration as evidence of his residence in Connecticut. Ward Shelley was registered to vote in Florida in 2004. He testified that he registered in Florida because he thought his vote would make a bigger difference in Florida than New York, but the court rejects this testimony.
Traditional indicia proving occupancy in succession cases include a driver's license, voter's registration, tax returns, and telephone and bank records. ( See 300 E. 34th St. Co. v Habeeb, 248 AD2d 50, 55 [1st Dept 1997].) Ward Shelley does not offer any of these indicia to prove that he resided at the subject New York County premises before July or August 2005. Petitioner, on the other hand, offers documents to prove that Ward Shelley did not live in the subject New York County premises during this period. He filed his 1998 through 2004 tax returns using his Brooklyn address. Only in 2005 did he begin to file his taxes from the subject New York County premises. His bank and credit-card statements were sent to the Brooklyn premises until August 2005. He also did not receive mail at the subject New York County premises until August 2005. Instead, he received all mail at the Brooklyn premises. Ward Shelley's Web site listed the Brooklyn premises as both his home and work addresses. The Web site began to list Ward Shelley's address as the subject New York County premises only after the instant proceedings commenced. Furthermore, there are no telephone-usage records for the subject New York County premises between October 2004 and August 2005.
In response to these arguments, Ward Shelley claims that he arranged for his Web site to list the Brooklyn premises as his address. He claims that he listed his address as the Brooklyn premises on the Web site because his reputation would benefit more from being known as a Brooklyn artist than as a Manhattan artist. Ward Shelley testified that he maintained his own Web site. He could have readily made his Web site reflect his alleged correct address if he did not live in Brooklyn.
Ward Shelley also alleged that there are no telephone-usage records from October 2004 to August 2005 because James and Sally Shelley forbade him to use the telephone and he instead used only his cellular telephone to make telephone calls. The court rejects this testimony as implausible.
Ward Shelley offers several documents that place him at the subject New York County premises. None of these documents, however, place him there before February 2005. Most of the documents place him there only from summer 2005 through summer 2006. Ward Shelley offers two documents that somehow connect him to the subject New York County premises before 2005. The first is his 2004 Capital Gains and Losses form. This form does not list Ward Shelley's address. It merely lists an investment acquired in 1989 and sold in April 2004. The second are his personal checks, which list the subject New York County premises as his address. But he has used these checks since the early 1990s and continued to use them during the early-to-mid 1990s even when he concededly did not reside at the subject New York County premises. His inability to provide a single relevant document that places him as an occupant of the subject New York County premises before 2005 defeats his succession claim.
Several witnesses testified for Ward Shelley that he resided at the subject New York County premises after 1998. Ward Shelley argues that if his witnesses are found credible, the court should rule in his favor. But the witnesses do not support his claim that he co-occupied the subject New York County premises for no less than two years with James and Sally Shelley. Their testimony establishes only that he repeatedly, albeit occasionally, stayed at the subject New York County premises from 1998 through 2003.
Ward Shelley claims that he moved into the subject New York County premises in 1998 after his divorce in 1997 and subsequent world travels. His witnesses, however, place him in the subject New York County premises between only 1998 and 2003. None of the witnesses place him as a co-occupant of the subject New York County premises after 2003. Ward Shelley's ex-girlfriend testified that she visited the subject New York County premises only when James and Sally Shelley were not there. Her testimony does not show that Ward Shelley co-occupied or even occupied subject New York County premises. It proves merely that she was in the apartment with Ward Shelley when James and Sally Shelley were absent. Another witness testified that she assumed that Ward Shelley resided at the subject New York County premises because it was messy when she saw it. Although the plates and dishes she saw lying around gave her the impression that Ward Shelley lived there, her testimony does not prove that. It proves only that someone lived there. Finally, testimony that a witness went with Ward Shelley to the front door of the subject New York County premises, or left him by a subway to go to there, but did not actually set foot inside the subject New York County premises, does not meet Ward Shelley's burden of proving succession.
Given the number of witnesses offered, Ward Shelley argues that the lack of documents placing him as a co-occupant of the subject New York County premises is not dispositive. According to Ward Shelley, witness testimony can act as a suitable replacement for actual documentation in succession-rights proceedings. ( See Habeeb, 248 AD2d at 55.) The instant proceeding is distinguishable from Habeeb. In Habeeb, the respondent's witnesses were the deceased uncle's sister, close friend, and housekeeper, all of whom were aware of the apartment's occupants and regularly saw the respondent in the apartment on a regular basis. ( Id. at 52.) The housekeeper testified to washing the respondent's laundry, doing his shopping, and observing him at meals. ( Id.) Furthermore, the deceased uncle's close friend witnessed the respondent living in the premises daily for more than two years. ( Id.) Conversely, no witness in the instant proceeding reaches the level of reliability of the three witnesses in Habeeb. In the instant proceeding, the witnesses were Ward Shelley's acquaintances and friends. No witness was a constant visitor to the apartment or had constant communication with Ward or James Shelley.
Ward Shelley has not offered credible witness testimony or documentation placing him as a co-occupant of the subject New York County premises before 2005. Overwhelming evidence places him at other locations before 2005.
Final judgment for petitioner. The warrant may issue fortwith. Execution stayed for 60 days after service with notice of entry.
This opinion is the court's decision and order.