390 West End Associates v. Wildfoerster

Order of the Appellate Term of the Supreme Court, First Department, (Parness, J. P., McCooe and Freedman, JJ.), entered May 24, 1996, which affirmed a judgment of the Civil Court, New York County (Howard Malatzky, J.), entered February 2, 1995, after a non-jury trial, awarding possession of the subject apartment to petitioner landlord, affirmed, without costs.

We agree with the majority at the Appellate Term and the trial court that there is essentially no evidence other than oral reflections of respondent and the deceased’s friends that respondent’s relationship with the deceased tenant of record was characterized by the “emotional and financial commitment and interdependence” necessary for purposes of family member succession to the rent stabilized tenancy.

Despite a 20 year relationship during which they lived together from 1976 to 1978 and again for more than two years prior to the tenant’s death from AIDS in 1993, lacking are the normal indicia of a familial relationship. Although the tenant’s *403close friends testified, and the trial court found, that the tenant and respondent had a very close, loving relationship, the trial evidence failed to sufficiently establish respondent as a “family” member within the meaning of the applicable rent regulations.

The exact nature of respondent’s living, arrangements is unclear, given that he continued to receive his mail not at the deceased tenant’s apartment but at 711 West End Avenue, listed that address on credit applications and used it on his driver’s license and tax returns.

Moreover, although it is undisputed that respondent was totally dependent upon the tenant financially, there was no commingling of finances, no joint ownership of anything, not even an indication of sharing household or family expenses. Most significantly, there was no provision, financial or otherwise, made for respondent at a time when the tenant knew or should have known that he was dying.

The dissent suggests that the trial court and Appellate Term majority failed to consider the “ ‘totality of the relationship,’ focusing instead on a single factor—the absence of a will—to conclude that respondent had failed to meet his burden under the statute”. In fact, the trial court and the Appellate Term majority did analyze the various factors and did not focus solely on the absence of a will, finding that “[w]hile respondent claims to have been financially dependent on the tenant, the latter made no provision for the respondent by will, insurance or otherwise” (emphasis added).

While respondent argues that the reason there is little tangible proof of their interdependent relationship was because the deceased was an intensely private man who refused to publically acknowledge any personal relationship or even his impending death, the tenant in fact knew of his impending death and to that end asked respondent to assist him in recovering $150,000 in assets from Germany by means of a limited power of attorney. Nevertheless, the tenant made no transfers to respondent and the only “legacy” respondent obtained upon his death was a gift of $20,000 from decedent’s estranged brother, a resident of California, who became administrator after the tenant unfortunately made no arrangements to have respondent or anyone else handle his estate, despite the fact that respondent lived with him for over two years prior to his death and cared for him during those difficult last months as a family member would.

Thus, respondent seeks to have the petitioner landlord and this Court do what the deceased tenant never did in any *404fashion, which is acknowledge that their relationship could be described as having “family” attributes. What does emerge is a one-sided financial relationship. The respondent worked as the tenant’s assistant in his business of producing cultural events but, while there was testimony that respondent and the tenant occasionally entertained and travelled together, the tenant never acknowledged any family-type relationship with the respondent. There is no picture, letter, note or other memento evincing a.family-type relationship between the two and there were no other joint traditional “family-type” events or celebrations to evidence any interdependence in a familial sense. Concur—Nardelli, Williams and Andrias, JJ.