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829 Seventh Avenue Co. v Reider Published Decision


Court of Appeals of New York.

829 SEVENTH AVENUE COMPANY, Appellant,

v.

Eve REIDER, Respondent.

April 29, 1986.

Holdover proceeding was instituted by landlord against deceased tenant’s granddaughter. The Civil Court of the City of New York, Dankberg, J., entered judgment in favor of granddaughter, and landlord appealed. The Supreme Court, Appellate Term, 125 Misc.2d 39, 480 N.Y.S.2d 399, reversed, and granddaughter appealed. The Supreme Court, Appellate Division, 111 A.D.2d 670, 491 N.Y.S.2d 160, modified order by reversing so much of it as determined that granddaughter was not entitled to remain in occupancy under City Rent and Eviction Regulation and reinstated landlord’s petition for possession, and affirmed as modified, and landlord appealed. The Appellate Division, 113 A.D.2d 1037, 493 N.Y.S.2d 433, also certified question concerning whether portion of order which modified order of Appellate Term was properly made. The Court of Appeals held that there was not sufficient evidence of indicia of permanence or continuity of occupancy by granddaughter to find that she was “living with” deceased tenant and was protected from eviction under city regulation.

Appellate Division reversed; Questions certified not answered as unnecessary.
West Headnotes

[1] Landlord and Tenant 233
278.4(6)
233 Landlord and Tenant 233IX Re-Entry and Recovery of Possession by Landlord 233k278.1 Suspension of Remedies 233k278.4 Persons and Premises Subject to Regulations
233k278.4(6) k. Subtenants, licensees or other persons. Most Cited Cases

Requirement that member of deceased tenant’s family other than living spouse be “living with” tenant in order to be protected from eviction under City Rent and Eviction Regulations means living with such statutory tenant in family unit, which in turn connotes arrangement, whatever its duration, bearing some indicia of permanence or continuity. City Rent and Eviction Regulations, § 56(d), McK.Unconsol.Laws.

[2] Landlord and Tenant 233
278.4(6)
233 Landlord and Tenant 233IX Re-Entry and Recovery of Possession by Landlord 233k278.1 Suspension of Remedies 233k278.4 Persons and Premises Subject to Regulations 233k278.4(6) k. Subtenants, licensees or other persons. Most Cited Cases

Granddaughter’s residing with grandmother did not bear sufficient indicia of permanence or continuity to find that granddaughter was “living with” grandmother for purposes of City Rent and Eviction Regulation protecting relatives of deceased tenants who have been living with tenant from being evicted. City Rent and Eviction Regulations, § 56(d), McK.Unconsol.Laws.

***716 **940 *931 Jeffrey R. Metz and Patricia D. De Cicco, New York City, for appellant.
Richard B. Feldman, New York City, for respondent.

*932 OPINION OF THE COURT
MEMORANDUM.

The order of the Appellate Division, 111 A.D.2d 670, 491 N.Y.S.2d 160 should be reversed, and the order of the Appellate Term granting final judgment of possession to petitioner landlord reinstated, with costs. The question certified, 113

493 N.E.2d 939 Page 2 67 N.Y.2d 930, 493 N.E.2d 939, 502 N.Y.S.2d 715

(Cite as: 67 N.Y.2d 930, 493 N.E.2d 939, 502 N.Y.S.2d 715)
A.D.2d 1037, 493 N.Y.S.2d 433, should not be answered as unnecessary.

The issue presented on this appeal is whether the respondent adduced legally sufficient proof that she had been “living with” her grandmother at the time of the grandmother’s death.

On May 1, 1982, respondent in this holdover proceeding moved into a rent-controlled one-bedroom apartment in Manhattan of which her grandmother was the statutory tenant. She slept on a sofa bed in the living room, shared household chores with her grandmother and contributed $100 in cash toward each month’s rent. Before moving in with her grandmother, the respondent had resided in a studio apartment in Rego Park, Queens, which she leased for $350 per month and furnished with her own furniture and other household goods. On May 1, 1982, the tenant orally sublet her Queens apartment to a friend for $250 per month.

After the grandmother’s sudden hospitalization in mid-August 1982 the respondent paid the September rent and after the grandmother’s death on September 29, 1982, the respondent paid the October rent, both payments being made with her checks and accepted by the landlord. After the respondent informed the landlord of her grandmother’s death, her November rent payment was rejected. Service of a notice ***717 **941 of termination of license and notice to quit followed the rejection.

The respondent claims she is entitled to remain in possession of the apartment pursuant to New York City Rent and Eviction Regulations § 56(d), which provides: “No occupant of housing accommodations shall be evicted under this section where the occupant is either the surviving spouse of the deceased tenant or some other member of the deceased tenant’s family who has been living with the tenant”.
[1] Section 56(d), by its terms, protects only members of a deceased statutory tenant’s family.

Thus the “living with” requirement must be read to mean living with such statutory tenant in a family unit, which in turn connotes an arrangement, whatever its duration, bearing some indicia of permanence*933 or continuity (Goodhue House Co. v. Bernstein, NYLJ, Dec. 7, 1981, p. 14, col. 3).

[2] In the present case, the respondent never put her name on her grandmother’s mailbox, and did not advise either the doorman or the landlord of her cooccupancy. She left all her furniture in the Rego Park apartment, maintained her telephone number there, and kept her bank accounts at a Rego Park bank. These facts, found by the courts below on virtually uncontradicted proof, are indicia only of transience and temporary occupancy. The Appellate Division erred, therefore, in determining that section 56(d) protected the respondent from eviction as a holdover.

WACHTLER, C.J., and MEYER, SIMONS, KAYE, ALEXANDER, TITONE and HANCOCK, JJ., concur.

Order reversed, with costs, and the order of the Appellate Term reinstated in a memorandum.

Question certified not answered as unnecessary.

N.Y.,1986. 829 Seventh Ave. Co. v. Reider 67 N.Y.2d 930, 493 N.E.2d 939, 502 N.Y.S.2d 715

END OF DOCUMENT

Adam Leitman Bailey, P.C.

NEW YORK REAL ESTATE ATTORNEYS