Posted On: June 30, 2013 by Stephen Bilkis

Probate Court Reverses Summary Judgment

The order of the Appellate Term of the Supreme Court which reversed a judgment of the New York County Civil Court in tenant's favor was unanimously reversed, on the law and the facts, without costs, and the landlord's petition is dismissed.

A New York Probate Lawyer said the evidence presented to the trial court amply supported its conclusion that the respondent's relationship with the now deceased tenant of record was that of a nontraditional family member, as defined in Rent Stabilization Code wherein any other person residing with the tenant or permanent tenant in the housing accommodation as a primary or principal residence, respectively, who can prove emotional and financial commitment, and interdependence between such person and the tenant or permanent tenant. Although no single factor shall be solely determinative, evidence which is to be considered in determining whether such emotional and financial commitment and interdependence existed may include, without limitation, such factors as longevity of the relationship or sharing of or relying upon each other for payment of household or family expenses, and/or other common necessities of life. Another factor is intermingling of finances as evidenced by, among other things, joint ownership of bank accounts, personal and real property, credit cards, loan obligations, sharing a household budget for purposes of receiving government benefits. Engaging in family-type activities by jointly attending family functions, holidays and celebrations, social and recreational activities are yet another factor to be considered. Another factor is formalizing of legal obligations, intentions, and responsibilities to each other by such means as executing wills naming each other as executor and/or beneficiary, granting each other a power of attorney and/or conferring upon each other authority to make health care decisions each for the other, entering into a personal relationship contract, making a domestic partnership declaration, or serving as a representative payee for purposes of public benefits.

A Queens Probate Lawyer said the court will also consider when the person residing with the tenant is holding themselves out as family members to other family members, friends, members of the community or religious institutions, or society in general, through their words or actions or if the person is regularly performing family functions, such as caring for each other or each other's extended family members, and/or relying upon each other for daily family services; or if the person residing with the tenant is engaging in any other pattern of behavior, agreement, or other action which evidences the intention of creating a long-term, emotionally committed relationship. In no event would evidence of a sexual relationship between such persons be required or considered.

A Staten Island Probate Lawyer said the respondent lived with the deceased tenant for 15 years without paying rent; the two shared holiday and birthday celebrations, traveled together and traditionally ate their breakfast together in the subject apartment. Also, they took care of each other, as needed. It is of note that the respondent spent substantial time caring for the deceased tenant throughout a lengthy battle with cancer, which eventually took her life. Further, the respondent used the apartment's address on a W-2 form, a bank statement and a voter registration form. He also received his mail there. There is no evidence that he had any other address. While the statute considers intermingling of finances, the absence of this factor here does not negate the conclusion that the deceased tenant and the respondent had a family-like relationship.

The decision of the fact finder should not be disturbed upon appeal unless it is obvious that its conclusions could not be reached under any fair interpretation of the evidence. This is especially true when the findings of fact rest in large measure on considerations relating to the credibility of witnesses. The totality of the evidence before the trial court supported its determination that the respondent and the deceased tenant lived together for 15 years as non-traditional family members. Accordingly, the court reversed the appealed order and dismissed the petition.
In another Estate related case, the order of the New York County Supreme Court which denied without prejudice the complainant's motion for partial summary judgment was unanimously reversed, on the law, without costs, the motion restored to the calendar and the matter remanded for further proceedings, including disposition of the motion on the merits, if possible, following the parties' submission of papers.

The court erred in denying the complainant's properly filed summary judgment motion, absent the submission by the defendant of an affidavit in opposition to the motion showing that facts essential to justify opposition may exist but cannot then be stated. Indeed, the defendant failed to make any evidentiary showing that the completion of outstanding discovery will yield material and relevant evidence.

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