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Miguel
Braschi, Appellant, v. Stahl Associates
Company,
Respondent
[NO NUMBER
IN ORIGINAL]
Court of
Appeals of New York
74 N.Y.2d
201; 543 N.E.2d 49; 1989 N.Y. LEXIS 877; 544
N.Y.S.2d 784
July 6,
1989, Decided
SUBSEQUENT
HISTORY: [***1]
As Corrected.
PRIOR HISTORY:
Appeal, by permission of the Appellate Division
of the Supreme Court in the First Judicial
Department, from an order of that court, entered
August 4, 1988, which (1) reversed, on the law,
an order of the Supreme Court (Harold Baer, Jr.,
J.), entered in New York County, granting a
motion by plaintiff for a preliminary injunction
and enjoining defendant from evicting plaintiff
from the apartment at which he currently resides,
and (2) denied plaintiff's motion. The following
question was certified by the Appellate Division:
"Was the order of this Court, which reversed
the order of the Supreme Court, properly
made?"
Braschi v
Stahl Assocs. Co., 143 AD2d 44.
DISPOSITION:
Order reversed, with costs, and case remitted to
the Appellate Division, First Department, for
consideration of undetermined questions.
Certified question answered in the negative.
HEADNOTES:
Landlord and Tenant -- Rent Regulation --
Noneviction Protection of Members of
"Family" of Deceased Rent-Control
Tenant -- Permanent Life Partner of Deceased
Tenant
1. In an action
commenced by appellant, who resided with the now
deceased tenant of record of a rent-controlled
apartment as a permanent [***2] life partner,
seeking to permanently enjoin his eviction and to
declare his entitlement to occupy the apartment,
an order of the Appellate Division, which
reversed, on the law, a Supreme Court order
granting appellant's motion and enjoining
respondent landlord from evicting appellant until
a court could determine whether he was a member
of the deceased tenant's "family"
within the meaning of New York City Rent and
Eviction Regulations (9 NYCRR) § 2204.6 (d), and
denied appellant's motion, is reversed, and the
case is remitted to the Appellate Division for a
consideration of undetermined questions.
Appellant has demonstrated a likelihood of
success on the merits, in that he is not
excluded, as a matter of law, from seeking
noneviction protection under 9 NYCRR 2204.6(d).
Appeal --
Matters Appealable -- Appellate Division Order
Denying Preliminary Injunction on Issue of Law
Alone -- Certified Question from Appellate
Division
2. Although the
determination of an application for a provisional
remedy such as a preliminary injunction
ordinarily involves the exercise of discretion,
the denial of such relief presents a question of
law reviewable by the Court of Appeals on an
appeal [***3] brought pursuant to CPLR 5713 when
the Appellate Division denies the relief on an
issue of law alone, and makes clear that no
question of fact or discretion entered into its
decision. Accordingly, the Court of Appeals may
entertain an appeal by permission of the
Appellate Division on a certified question from
an order of the Appellate Division which
reversed, on the law, a Supreme Court order
granting appellant's motion for a preliminary
injunction enjoining respondent landlord from
evicting appellant from a rent-controlled
apartment, which he shared as a permanent life
partner with the now deceased tenant of record,
until a court could determine whether appellant
was a member of the deceased tenant of record's
"family" within the meaning of 9 NYCRR
2204.6 (d), and denied the motion; the Appellate
Division's determination rested solely on its
conclusion that as a matter of law appellant
could not seek noneviction protection under 9
NYCRR 2204.6(d) because of the absence of a
"legally recognized" relationship with
the deceased tenant.
COUNSEL: William
B. Rubenstein, Owen Wincig, Nan D. Hunter and
Judith Levin for appellant. I. This court, the
Legislature and the City Council have [***4]
consistently used a functional approach to
definitions of "family" in the housing
context. (City of White Plains v Ferraioli, 34
NY2d 300; Group House v Board of Zoning
& Appeals, 45 NY2d 266; McMinn v Town
of Oyster Bay, 66 NY2d 544; 2-4 Realty
Assocs. v Pittman, 137 Misc 2d 898; Zimmerman
v Burton, 107 Misc 2d 401; 420 E. 80th Co.
v Chin, 115 Misc 2d 195, 97 AD2d 390; Avest
Seventh Corp. v Ringelheim, 116 Misc 2d 402; New
York City Hous. Auth. v Shephard, 114 Misc 2d
873.) II. The New York State and United
States Constitutions require that family be read
functionally in this context so that similarly
situated persons will be treated equally. (People
v Liberta, 64 NY2d 152, 471 U.S. 1020; 829 Seventh
Ave. Co. v Reider, 67 NY2d 930; Matter of
Robert Paul P., 63 NY2d 233; Group House v
Board of Zoning & Appeals, 45 NY2d 266; United
States Dept. of Agric. v Moreno, 413 U.S. 528;
New Jersey Welfare Rights Org. v Cahill, 411
U.S. 619; 333 E. 53rd St. Assocs. v Mann,
121 AD2d 289, 70 NY2d 660; Dorsey v
Stuyvesant Town Corp., 299 NY 512, 339 U.S. 981;
Under 21 v City of New York, 65 NY2d 344; Matter
of Esler v Walters [***5] , 56 NY2d 306.)
Dean G. Yuzek,
David A. Picon, Joan Walter and Richard F. Czaja
for respondent. I. Braschi has not demonstrated
that, as the surviving gay life partner of a
deceased tenant, he is a member of the decedent's
family for the purposes of section 2204.6 (d) of
the State's rent-control regulations and has a
right to succeed to the decedent's
rent-controlled apartment. (Robinson v Jewett,
116 NY 40; McDonald v Fiss, 54 AD2d 489;
East Four-Forty Assocs. v Ewell, 138 Misc 2d
235; Collins v Next W. Mgt., 137 Misc 2d
632; Matter of Robert Paul P., 63 NY2d
233; Bright Homes v Wright, 8 NY2d 157;
Koppelman v O'Keeffe, 140 Misc 2d 828; Concourse
Vil. v Bilotti, 139 Misc 2d 886.) II. Section
2204.6 (d) is constitutional when construed using
the traditional definition of the term
"family". (Bowen v Owens, 476 U.S.
340; Western & S. Life Ins. Co. v
Board of Equalization, 451 U.S. 648; Matter
of Doe v Coughlin, 71 NY2d 48; Elmwood-Utica
Houses v Buffalo Sewer Auth., 65 NY2d 489; Matter
of Shattenkirk v Finnerty, 97 AD2d 51; Hodel
v Indiana, 452 U.S. 314; Poggi v City of
New York, 109 AD2d 265, 67 NY2d 794; [***6] McGowan
v Maryland, 366 U.S. 420; Maresca v Cuomo,
64 NY2d 242, 474 U.S. 802; Califano v
Jobst, 434 U.S. 47.)
Peter L.
Zimroth, Corporation Counsel (Leonard Koerner,
Frederick P. Schaffer and Phyllis Arnold of
counsel), for City of New York, amicus curiae.
Braschi should be found to be "some other
member of the deceased tenant's family"
within the meaning of the noneviction regulation
and thus entitled to continue occupying his
rent-controlled apartment. (Matter of McNulty
v New York State Tax Commn., 70 NY2d 788; Matter
of Jones v Berman, 37 NY2d 42; Matter of
Capital Newspapers v Whalen, 69 NY2d 246; People
v Eulo, 63 NY2d 341; 2-4 Realty Assocs. v
Pittman, 137 Misc 2d 898; Zimmerman v
Burton, 107 Misc 2d 401; Dixon v Robbins,
246 NY 169; Williams v Williams, 23 NY2d
592; Matter of New York Life Ins. Co. v
State Tax Commn., 80 AD2d 675, 55 NY2d 758.)
Arthur S.
Leonard and Jonathan Lang for the Association of
the Bar of the City of New York, amicus curiae.
Under principles enunciated by this court,
section 2204.6 (d) cannot be construed to deny
Mr. Braschi the legal protection afforded to a
"member of the [***7] deceased tenant's
family". (McMinn v Town of Oyster Bay, 66
NY2d 544; Group House v Board of Zoning
& Appeals, 45 NY2d 266; City of White
Plains v Ferraioli, 34 NY2d 300; Matter of
Robert Paul P., 63 NY2d 233.)
Ann Moynihan,
Paris Baldacci, Douglass J. Seidman, Kalman
Finkel, John E. Kirklin, Lynn M. Kelly, Mary
Marsh Zulack and Sandra R. Farber for the Legal
Aid Society of New York City, amicus curiae.
Protection of the rent-control laws is not
limited to only those surviving cooccupants who
are related by consanguinity or legal formality
to the prime tenant, but includes functional
family members as well. (Sullivan v Brevard
Assocs., 66 NY2d 489; Matter of Herzog v
Joy, 74 AD2d 372, 53 NY2d 821; 829 Seventh
Ave. Co. v Reider, 67 NY2d 930; 2-4 Realty
Assocs. v Pittman, 137 Misc 2d 898; McMinn
v Town of Oyster Bay, 66 NY2d 544; Group
House v Board of Zoning & Appeals, 45 NY2d
266; City of White Plains v Ferraioli, 34
NY2d 300; 8200 Realty Corp. v Lindsay, 27
NY2d 124.)
Christopher H.
Lunding and Jessica Sporn Tavakoli for Community
Action for Legal Services, Inc., amicus curiae.
The decision below should [***8] be reversed
because the rent-control laws were intended to
protect people who have lived permanently and
continuously with a rent-controlled tenant as
part of an integrated family unit. (Sullivan v
Brevard Assocs., 66 NY2d 489; 829 Seventh
Ave. Co. v Reider, 67 NY2d 930; 2-4 Realty
Assocs. v Pittman, 137 Misc 2d 898; Matter
of Waitzman v McGoldrick, 20 Misc 2d 1085; Edwards
v Habib, 397 F2d 687; Moore v East
Cleveland, 431 U.S. 494; McMinn v Town of
Oyster Bay, 66 NY2d 544; City of White
Plains v Ferraioli, 34 NY2d 300; Group
House v Board of Zoning & Appeals, 45 NY2d
266; Matter of Adult Anonymous II, 88 AD2d
30.)
William H.
Gardner, Thomas F. Coleman and Jay M. Kohorn for
Family Service America and others, amici curiae.
I. New York public policy requires flexibility in
defining family. (Town of Henrietta v
Fairchild, 53 Misc 2d 862; Baddour v City
of Long Beach, 279 NY 167; Group House v
Board of Zoning & Appeals, 45 NY2d 266; City
of White Plains v Ferraioli, 34 NY2d 300; Crane
Neck Assn. v New York City/Long Is. County Servs.
Group, 61 NY2d 154; McMinn v Town of
Oyster Bay, 66 NY2d 544; New York [***9] City
Hous. Auth. v Nesmith, 100 Misc 2d 414; New
York City Hous. Auth. v Shephard, 114 Misc 2d
873.) II. New York City demographics reflect
great variety in the personal characteristics of
city residents and tremendous diversity in their
family relationships. III. By defining
"family" in an inclusive manner within
the rent-control context, this court can further
legislative intent, advance public policy, remove
constitutional doubts and avoid unjust
consequences. (Matter of Capital Newspapers v
Whalen, 69 NY2d 246; Schultz v Boy Scouts,
65 NY2d 189; Kraut v Morgan & Brother
Manhattan Stor. Co., 38 NY2d 445; People v
Groff, 71 NY2d 101; Matter of Lorie C., 49
NY2d 161; Matter of Albano v Kirby, 36
NY2d 526; Matter of Pluto's Cave v State
Liq. Auth., 68 NY2d 791; Sullivan v
Brevard Assocs., 66 NY2d 489; Matter of
Herzog v Joy, 53 NY2d 821.) IV. A
case-by-case approach, utilizing definitional
criteria from zoning precedents, should be used
to determine if nonrelatives are entitled to
protection under the family survivor regulation.
(People v Hasse, 57 Misc 2d 59; Matter
of Sabot v Lavine, 42 NY2d 1068; Matter of
Park W. Vil. v Lewis [***10] , 62 NY2d 431; People
v Harkins , 49 Misc 2d 673; Smith v
Organization of Foster Families, 431 U.S. 816;
Matter of Spenser v Spenser, 128 Misc 2d 298;
Morone v Morone, 50 NY2d 481; Brown v
County of San Joaquin, 601 F Supp 653; Matter
of Lorie C., 49 NY2d 161; Roberts v United
States Jaycees, 468 U.S. 609.)
James Briscoe
West for the Gay Men's Health Crisis, Inc., and
others, amici curiae. I. AIDS continues to have a
devastating impact upon the New York City housing
market. II. The new category of eviction
proceedings involving deaths from AIDS
illustrates the scope of the problem. (Yorkshire
Towers Co. v Harpster, 134 Misc 2d 384; Collins
v Next W. Mgt., 137 Misc 2d 632.)
Steven A. Rosen
and Paula L. Ettelbrick for Lambda Legal Defense
and Education Fund, Inc., amicus curiae. I. The
I.A.S. court correctly held that the New York
Constitution requires recognition that plaintiff
is a "member of the deceased tenant's
family" entitled to continued occupancy of
his rent-controlled apartment. (City of White
Plains v Ferraioli, 34 NY2d 300; Group
House v Board of Zoning & Appeals, 45 NY2d
266; McMinn v Town of Oyster [***11] Bay,
66 NY2d 544; Zimmerman v Burton , 107 Misc
2d 401; Matter of Robert Paul P., 63 NY2d
233.) II. The public policy of the State and
City of New York, as determined by their
respective Legislatures, supports plaintiff's
right to continued occupancy. (Albemarle Paper
Co. v Moody, 422 U.S. 405.)
JUDGES: Judges
Kaye and Alexander concur with Judge Titone;
Judge Bellacosa concurs in a separate opinion;
Judge Simons dissents and votes to affirm in
another opinion in which Judge Hancock, Jr.,
concurs; Chief Judge Wachtler taking no part.
OPINIONBY:
TITONE
OPINION: [*205]
[**50] OPINION OF THE COURT
In this dispute
over occupancy rights to a rent-controlled [*206]
apartment, the central question to be resolved on
this request for preliminary injunctive relief
(see, CPLR 6301) is whether appellant has
demonstrated a likelihood of success on the
merits (see, Grant Co. v Srogi, 52 NY2d 496,
517) by showing that, as a matter of law, he
is entitled to seek protection from eviction
under New York City Rent and Eviction Regulations
9 NYCRR 2204.6 (d) (formerly New York City Rent
and Eviction Regulations § 56 [d]). That
regulation provides that upon the death [***12]
of a rent-control tenant, the landlord may not
dispossess "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" (emphasis supplied). Resolution
of this question requires this court to determine
the meaning of the term "family" as it
is used in this context.
I.
Appellant,
Miguel Braschi, was living with Leslie Blanchard
in a rent-controlled apartment located at 405
East 54th Street from the summer of 1975 until
Blanchard's death in September of 1986. In
November [**51] of 1986, respondent, Stahl
Associates Company, the owner of the apartment
building, served a notice to cure on appellant
contending that he was a mere licensee with no
right to occupy the apartment since only
Blanchard was the tenant of record. In December
of 1986 respondent served appellant with a notice
to terminate informing appellant that he had one
month to vacate the apartment and that, if the
apartment was not vacated, respondent would
commence summary proceedings to evict him.
Appellant then
initiated an action seeking a permanent
injunction and a declaration of entitlement to
occupy the apartment. By order to show [***13]
cause appellant then moved for a preliminary
injunction, pendente lite, enjoining respondent
from evicting him until a court could determine
whether he was a member of Blanchard's family
within the meaning of 9 NYCRR 2204.6 (d). After
examining the nature of the relationship between
the two men, Supreme Court concluded that
appellant was a "family member" within
the meaning of the regulation and, accordingly,
that a preliminary injunction should be issued.
The court based this decision on its finding that
the long-term interdependent nature of the
10-year relationship between appellant and
Blanchard "fulfills any definitional
criteria of the term 'family.'"
The Appellate
Division reversed, concluding that section [*207]
2204.6 (d) provides noneviction protection only
to "family members within traditional,
legally recognized familial relationships" (143
AD2d 44, 45). Since appellant's and
Blanchard's relationship was not one given formal
recognition by the law, the court held that
appellant could not seek the protection of the
noneviction ordinance. After denying the motion
for preliminary injunctive relief, the Appellate
Division granted leave to [***14] appeal to this
court, certifying the following question of law:
"Was the order of this Court, which reversed
the order of the Supreme Court, properly
made?" We now reverse.
II.
As a threshold
matter, although the determination of an
application for a provisional remedy such as a
preliminary injunction ordinarily involves the
exercise of discretion, the denial of such relief
presents a question of law reviewable by this
court on an appeal brought pursuant to CPLR 5713
when "the Appellate Division denies [the]
relief on an issue of law alone, and makes clear
that no question of fact or discretion entered
into its decision" (Herzog Bros. Trucking
v State Tax Commn., 69 NY2d 536, 540-541,
vacated 487 U.S. , 108 S Ct 2861, on
remand 72 NY2d 720; see, Cohen and Karger,
Powers of the New York Court of Appeals § 88, at
377 [rev ed]; Public Adm'r of County of N. Y.
v Royal Bank, 19 NY2d 127, 129-130). Here,
the Appellate Division's determination rested
solely on its conclusion that as a matter of law
appellant could not seek noneviction protection
because of the [***15] absence of a "legally
recognized" relationship with Blanchard.
Consequently, appellant's appeal may be
entertained, and we may review the central
question presented: whether, on his motion for a
preliminary injunction, appellant failed to
establish, as a matter of law, the requisite
clear likelihood of success on the merits of his
claim to the protection from eviction provided by
section 2204.6 (d).
III.
It is
fundamental that in construing the words of a
statute "[the] legislative intent is the
great and controlling principle" (People
v Ryan, 274 NY 149, 152; see, Ferres v
City of New Rochelle, 68 NY2d 446, 451; Matter
of Petterson v Daystrom Corp., 17 NY2d 32, 38).
Indeed, "the general purpose is a more
important aid to the meaning than any rule which
grammar [*208] or formal logic may lay down"
(United States v Whitridge, 197 U.S. 135,
143). Statutes are ordinarily interpreted so
as to avoid objectionable consequences and to
prevent hardship or injustice (see, Zappone v
Home Ins. Co., 55 NY2d 131; Matter of
Petterson v Daystrom Corp., 17 NY2d 32, 38,
[**52] [***16] supra; McKinney's Cons Laws of NY,
Book 1, Statutes §§ 141, 143, 146). Hence,
where doubt exists as to the meaning of a term,
and a choice between two constructions is
afforded, the consequences that may result from
the different interpretations should be
considered (see, Matter of Town Smithtown v
Moore, 11 NY2d 238, 244; People v Ryan,
274 NY 149, 152, supra). In addition, since
rent-control laws are remedial in nature and
designed to promote the public good, their
provisions should be interpreted broadly to
effectuate their purposes (see, Matter of Park
W. Vil. v Lewis, 62 NY2d 431, 436-437; Matter
of Sommer v New York City Conciliation &
Appeals Bd., 93 AD2d 481, affd 61 NY2d
973; McKinney's Cons Law of NY, Book 1,
Statutes § 341). Finally, where a problem as to
the meaning of a given term arises, a court's
role is not to delve into the minds of
legislators, but rather to effectuate the statute
by carrying out the purpose of the statute as it
is embodied in the words chosen by the
Legislature (see, Frankfurter, [***17] Some
Reflections on the Reading of Statutes, 47
Colum L Rev 527, 538-540).
The present
dispute arises because the term
"family" is not defined in the
rent-control code and the legislative history is
devoid of any specific reference to the
noneviction provision. All that is known is the
legislative purpose underlying the enactment of
the rent-control laws as a whole.
Rent control was
enacted to address a "serious public
emergency" created by "an acute
shortage in dwellings," which resulted in
"speculative, unwarranted and abnormal
increases in rents" (L 1946 ch 274,
codified, as amended, at McKinney's Uncons Laws
of NY § 8581 et seq). These measures were
designed to regulate and control the housing
market so as to "prevent exactions of
unjust, unreasonable and oppressive rents and
rental agreements and to forestall profiteering,
speculation and other disruptive practices
tending to produce threats to the public health *
* * [and] to prevent uncertainty, hardship and
dislocation" (id.). Although initially
designed as an emergency measure to alleviate the
housing shortage attributable to the end of World
War II, "a serious public emergency
continues [***18] to exist in the housing of a
considerable number of persons" (id.).
Consequently, the Legislature has found it
necessary to continually reenact the rent-control
[*209] laws, thereby providing continued
protection to tenants.
To accomplish
its goals, the Legislature recognized that not
only would rents have to be controlled, but that
evictions would have to be regulated and
controlled as well (id.). Hence, section 2204.6
of the New York City Rent and Eviction
Regulations (9 NYCRR 2204.6), which authorizes
the issuance of a certificate for the eviction of
persons occupying a rent-controlled apartment
after the death of the named tenant, provides, in
subdivision (d), noneviction protection to those
occupants who are 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 [of record]"
(emphasis supplied). The manifest intent of this
section is to restrict the landowners' ability to
evict a narrow class of occupants other than the
tenant of record. The question presented here
concerns the scope of the protections provided.
Juxtaposed against this intent favoring the
protection of tenants, [***19] is the over-all
objective of a gradual "transition from
regulation to a normal market of free bargaining
between landlord and tenant" (see, e.g.,
Administrative Code of City of New York § 26-
401). One way in which this goal is to be
achieved is "vacancy decontrol," which
automatically makes rent-control units subject to
the less rigorous provisions of rent
stabilization upon the termination of the
rent-control tenancy (9 NYCRR 2520.11 [a]; 2521.1
[a] [1]).
Emphasizing the
latter objective, respondent argues that the term
"family member" as used in 9 NYCRR
2204.6 (d) should be construed, consistent with
this State's intestacy laws, to mean
relationships of blood, consanguinity and
adoption in order to effectuate the over-all goal
of [**53] orderly succession to real property.
Under this interpretation, only those entitled to
inherit under the laws of intestacy would be
afforded noneviction protection (see, EPTL
4-1.1). Further, as did the Appellate Division,
respondent relies on our decision in Matter of
Robert Paul P. (63 NY2d 233), arguing that
since the relationship between appellant and
Blanchard has not been accorded legal status by
[***20] the Legislature, it is not entitled to
the protections of section 2204.6 (d), which,
according to the Appellate Division, applies only
to "family members within traditional,
legally recognized familial relationships" (143
AD2d 44, 45). Finally, respondent contends
that our construction of the term "family
member" should be guided by the recently
enacted noneviction provision of the Rent
Stabilization Code (9 [*210] NYCRR 2523.5 [a],
[b] [1], [2]), which was passed in response to
our decision in Sullivan v Brevard Assocs. (66
NY2d 489), and specifically enumerates the
individuals who are entitled to noneviction
protection under the listed circumstances (9
NYCRR 2520.6 [o]).
However, as we
have continually noted, the rent-stabilization
system is different from the rent-control system
in that the former is a less onerous burden on
the property owner, and thus the provisions of
one cannot simply be imported into the other (Sullivan
v Brevard Assocs., 66 NY2d 489, 494, supra;
see, 8200 Realty Corp. v Lindsay, 27 NY2d 124,
136- 137). Respondent's reliance on Matter
of Robert Paul P. (supra) [***21] is also
misplaced, since that case, which held that one
adult cannot adopt another where none of the
incidents of a filial relationship is evidenced
or even remotely intended, was based solely on
the purposes of the adoption laws (see, Domestic
Relations Law § 110) and has no bearing on the
proper interpretation of a provision in the
rent-control laws.
We also reject
respondent's argument that the purpose of the
noneviction provision of the rent-control laws is
to control the orderly succession to real
property in a manner similar to that which occurs
under our State's intestacy laws (EPTL 4- 1.1,
4-1.2). The noneviction provision does not
concern succession to real property but rather is
a means of protecting a certain class of
occupants from the sudden loss of their homes.
The regulation does not create an alienable
property right that could be sold, assigned or
otherwise disposed of and, hence, need not be
construed as coextensive with the intestacy laws.
Moreover, such a construction would be
inconsistent with the purposes of the
rent-control system as a whole, since it would
afford protection to distant blood relatives who
actually had but a superficial relationship with
[***22] the deceased tenant while denying that
protection to unmarried lifetime partners.
Finally, the
dissent's reliance on Hudson View Props. v
Weiss (59 NY2d 733) is misplaced. In that
case we permitted the eviction of an unrelated
occupant from a rent-controlled apartment under a
lease explicitly restricting occupancy to
"immediate family". However, the tenant
in Hudson View conceded "that an individual
not part of her immediate family" occupied
the apartment (id., at 735), and, thus,
the sole question before us was whether
enforcement of the lease provision was violative
of the State or City Human Rights [*211] Law.
Whether respondent tenant was, in fact, an
"immediate family" member was neither
specifically addressed nor implicitly answered
(see, dissenting opn, at 220).
Contrary to all
of these arguments, we conclude that the term
family, as used in 9 NYCRR 2204.6 (d), should not
be rigidly restricted to those people who have
formalized their relationship by obtaining, for
instance, a marriage certificate or an adoption
order. The intended protection against sudden
eviction should not rest on fictitious legal
[***23] distinctions or genetic history, but
instead should find its foundation in the reality
of family life. In the context of eviction, a
more realistic, and [**54] certainly equally
valid, view of a family includes two adult
lifetime partners whose relationship is long term
and characterized by an emotional and financial
commitment and interdependence. This view
comports both with our society's traditional
concept of "family" and with the
expectations of individuals who live in such
nuclear units (see also, 829 Seventh Ave. Co.
v Reider, 67 NY2d 930, 931-932 [interpreting
9 NYCRR 2204.6 (d)'s additional "living
with" requirement to mean living with the
named tenant "in a family unit, which in
turn connotes an arrangement, whatever its
duration, bearing some indicia of permanence or
continuity" (emphasis supplied)]). n1 In
fact, Webster's Dictionary defines
"family" first as "a group of
people united by certain convictions or common
affiliation" (Webster's Ninth New Collegiate
Dictionary 448 [1984]; see, Ballantine's Law
Dictionary 456 [3d ed 1969] ["family"
defined as "(p)rimarily, the collective body
of persons who live in one house and [***24]
under one head or management"]; Black's Law
Dictionary 543 [Special Deluxe 5th ed 1979]).
Hence, it is reasonable to conclude that, in
using the term "family," the
Legislature intended to extend protection to
those who reside in households having all of the
normal familial characteristics. n2 Appellant
Braschi should therefore be afforded the
opportunity to prove that he and Blanchard had
such a household.
n1 Although
the dissent suggests that our interpretation
of "family" indefinitely expands
the protections provided by section 2204.6
(d) (dissenting opn, at 216), its own
proposed standard -- legally recognized
relationships based on blood, marriage or
adoption -- may cast an even wider net, since
the number of blood relations an individual
has will usually exceed the number of people
who would qualify by our standard.
n2 We note
that the concurrer apparently agrees with our
view of the purposes of the noneviction
ordinance (concurring opn, at 215), and the
impact this purpose should have on the way in
which this and future cases should be
decided.
[***25]
[*212] This
definition of "family" is consistent
with both of the competing purposes of the
rent-control laws: the protection of individuals
from sudden dislocation and the gradual
transition to a free market system. Family
members, whether or not related by blood, or law
who have always treated the apartment as their
family home will be protected against the
hardship of eviction following the death of the
named tenant, thereby furthering the
Legislature's goals of preventing dislocation and
preserving family units which might otherwise be
broken apart upon eviction. n3 This approach will
foster the transition from rent control to rent
stabilization by drawing a distinction between
those individuals who are, in fact, genuine
family members, and those who are mere roommates
(see, Real Property Law § 235-f; Yorkshire
Towers Co. v Harpster, 134 Misc 2d 384) or
newly discovered relatives hoping to inherit the
rent-controlled apartment after the existing
tenant's death. n4
n3 We note,
however, that the definition of family that
we adopt here for purposes of the noneviction
protection of the rent-control laws is
completely unrelated to the concept of
"functional family," as that term
has developed under this court's decisions in
the context of zoning ordinances (see, Baer
v Town of Brookhaven, 73 NY2d 942; McMinn
v Town of Oyster Bay, 66 NY2d 544; Group
House v Board of Zoning & Appeals, 45
NY2d 266). Those decisions focus on a
locality's power to use its zoning powers in
such a way as to impinge upon an individual's
ability to live under the same roof with
another individual. They have absolutely no
bearing on the scope of noneviction
protection provided by section 2204.6 (d).
[***26]
n4 Also
unpersuasive is the dissent's interpretation
of the "roommate" law which was
passed in response to our decision in Hudson
View Props. v Weiss (59 NY2d 733). That
statute allows roommates to live with the
named tenant by making lease provisions to
the contrary void as against public policy
(Real Property Law § 235-f [2]). The law
also provides that "occupant's"
(roommates) do not automatically acquire
"any right to continued occupancy in the
event that the tenant vacates the
premises" (§ 235-f [6]). Occupant is
defined as "a person, other than a
tenant or a member of a tenant's immediate
family" (§ 235-f [1] [b]). However,
contrary to the dissent's assumption that
this law contemplates a distinction between
related and unrelated individuals, no such
distinction is apparent from the
Legislature's unexplained use of the term
"immediate family."
[**55] The
determination as to whether an individual is
entitled to noneviction protection should be
based upon an objective examination of the
relationship of the parties. In making this
assessment, the lower courts [***27] of this
State have 7 looked to a number of factors,
including the exclusivity and longevity of the
relationship, the level of emotional and
financial commitment, the manner in which the
parties have conducted their everyday lives and
held themselves out to society, and the [*213]
reliance placed upon one another for daily family
services (see, e.g., Athineos v Thayer, NYLJ,
Mar. 25, 1987, at 14, col 4 [Civ Ct, Kings
County], affd NYLJ, Feb. 9, 1988, at 15, col 4
[App Term, 2d Dept] [orphan never formally
adopted but lived in family home for 34 years];
2-4 Realty Assocs. v Pittman, 137 Misc 2d 898,
902 [two men living in a
"father-son" relationship for 25
years]; Zimmerman v Burton, 107 Misc 2d 401,
404 [unmarried heterosexual life partner];
Rutar Co. v Yoshito, No. 53042/79 [Civ Ct, NY
County] [unmarried heterosexual life partner];
Gelman v Castaneda, NYLJ, Oct. 22, 1986, at 13,
col 1 [Civ Ct, NY County] [male life partners]).
These factors are most helpful, although it
should be emphasized that the presence or absence
of one or more of them is not dispositive since
it is the totality of the relationship [***28] as
evidenced by the dedication, caring and 8
self-sacrifice of the parties which should, in
the final analysis, control. Appellant's
situation provides an example of how the rule
should be applied.
Appellant and
Blanchard lived together as permanent life
partners for more than 10 years. They regarded
one another, and were regarded by friends and
family, as spouses. The two men's families were
aware of the nature of the relationship, and they
regularly visited each other's families and
attended family functions together, as a couple.
Even today, appellant continues to maintain a
relationship with Blanchard's niece, who
considers him an uncle.
In addition to
their interwoven social lives, appellant clearly
considered the apartment his home. He lists the
apartment as his address on his driver's license
and passport, and receives all his mail at the
apartment address. Moreover, appellant's tenancy
was known to the building's superintendent and
doormen, who viewed the two men as a couple.
Financially, the
two men shared all obligations including a
household budget. The two were authorized
signatories of three safe-deposit boxes, they
maintained joint checking and savings accounts,
[***29] and joint credit cards. In fact, rent was
9 often paid with a check from their joint
checking account. Additionally, Blanchard
executed a power of attorney in appellant's favor
so that appellant could make necessary decisions
-- financial, medical and personal -- for him
during his illness. Finally, appellant was the
named beneficiary of Blanchard's life insurance
policy, as well as the primary legatee and
coexecutor of Blanchard's estate. Hence, a court
examining these facts could reasonably conclude
that these men were much more than mere
roommates.
[*214] Inasmuch
as this case is before us on a certified
question, we conclude only that appellant has
demonstrated a likelihood of success on the
merits, in that he is not excluded, as a matter
of law, from seeking noneviction protection.
Since all remaining issues are beyond this
court's scope of review, we remit this case to
the Appellate Division so that it may exercise
its discretionary powers in accordance with this
decision.
Accordingly, the
order of the Appellate Division should be
reversed and the case remitted to that court for
a consideration of undetermined questions. The
certified question should be answered in [***30]
the negative.
CONCURBY:
BELLACOSA
CONCUR:
Bellacosa, J. (concurring). 0 my vote to reverse
and remit rests on a narrower view of what must
be decided in this case than the plurality and
dissenting opinions deem necessary.
The issue is
solely whether petitioner qualifies as a member
of a "family", as that generic and
broadly embracive word is used in the
anti-eviction regulation of the rent-control
apparatus. The particular [**56] anti-eviction
public policy enactment is fulfilled by affording
the remedial protection to this petitioner on the
facts advanced on this record at this preliminary
injunction stage. The competing public policy of
eventually restoring rent-controlled apartments
to decontrol, to stabilization and even to arm's
length market relationships is eclipsed in this
instance, in my view, by the more pertinently
expressed and clearly applicable anti-eviction
policy.
Courts, in
circumstances as are presented here where
legislative intent is completely indecipherable
(Division of Housing and Community Renewal, the
agency charged with administering the policy, is
equally silent in this case and on this issue),
are not empowered or expected to expand or to
constrict the meaning of the legislatively
[***31] chosen word "family," which
could have been and 1 still can be qualified or
defined by the duly constituted enacting body in
satisfying its separate branch responsibility and
prerogative. Construing a regulation does not
allow substitution of judicial views or
preferences for those of the enacting body when
the latter either fails or is unable or
deliberately refuses to specify criteria or
definitional limits for its selected umbrella
word, "family", especially where the
societal, governmental, policy and fiscal
implications are so sweeping (Breitel, The
Lawmakers, 65 Colum L Rev 749, 767-771;
see also, Boreali v Axelrod, 71 NY2d 1,
11-12). For then, "the judicial function
expands beyond the [*215] molecular movements, in
Holmes' figure, into the molar" (Breitel,
op. cit., at 770).
The plurality
opinion favors the petitioner's side by invoking
the nomenclature of
"nuclear"/"normal"/"genuine"
family versus the
"traditional"/"legally
recognizable" family selected by the
dissenting opinion in favor of the landlord. I
eschew both polar camps because I see no valid
reason for deciding so broadly; indeed, there are
cogent [***32] reasons not to yaw towards either
end of the spectrum.
The application
2 of the governing word and statute to reach a
decision in this case can be accomplished on a
narrow and legitimate jurisprudential track. The
enacting body has selected an unqualified word
for a socially remedial statute, intended as a
protection against one of the harshest decrees
known to the law -- eviction from one's home.
Traditionally, in such circumstances, generous
construction is favored. Petitioner has made his
shared home in the affected apartment for 10
years. The only other occupant of that
rent-controlled apartment over that same extended
period of time was the tenant-in-law who has now
died, precipitating this battle for the
apartment. The best guidance available to the
regulatory agency for correctly applying the rule
in such circumstances is that it would be
irrational not to include this petitioner and it
is a more reasonable reflection of the intention
behind the regulation to protect a person such as
petitioner as within the regulation's class of
"family". In that respect, he qualifies
as a tenant in fact for purposes of the
interlocking provisions and policies of the
rent-control law. [***33] Therefore, under CPLR
6301, there would unquestionably be irreparable 3
harm by not upholding the preliminary relief
Supreme Court has decreed; the likelihood of
success seems quite good since four Judges of
this court, albeit by different rationales, agree
at least that petitioner fits under the
beneficial umbrella of the regulation; and the
balance of equities would appear to favor
petitioner.
The reasons for
my position in this case are as plain as the
inappropriate criticism of the dissent that I
have engaged in ipse dixit decision making. It
should not be that difficult to appreciate my
view that no more need be decided or said in this
case under the traditional discipline of the
judicial process. Interstitial adjudication, when
a court cannot institutionally fashion a
majoritarian rule of law either because it is
fragmented or because it is not omnipotent, is
quite respectable jurisprudence. We just do not
know the answers or implications [*216] for an
exponential number of varied fact situations, so
we should do what courts are in the business of
doing -- deciding cases as best they fallibly
can. Applying the unvarnished regulatory word,
[**57] "family", as written, to the
[***34] facts so far presented falls within a
well-respected and long-accepted judicial 4
method.
DISSENTBY:
SIMONS
DISSENT: Simons,
J. (dissenting). I would affirm. The plurality
has adopted a definition of family which extends
the language of the regulation well beyond the
implication of the words used in it. In doing so,
it has expanded the class indefinitely to include
anyone who can satisfy an administrator that he
or she had an emotional and financial
"commitment" to the statutory tenant.
Its interpretation is inconsistent with the
legislative scheme underlying rent regulation,
goes well beyond the intended purposes of 9 NYCRR
2204.6 (d), and produces an unworkable test that
is subject to abuse. The concurring opinion fails
to address the problem. It merely decides, ipse
dixit, that plaintiff should win.
Preliminarily,
it will be helpful to briefly look at the
legislative scheme underlying rent regulation.
Rent regulation
in New York is implemented by rent control and
rent stabilization. Rent control is the stricter
of the two programs. In 1946 the first of many
"temporary" rent-control measures was
enacted to address a public emergency created by
the shortage of residential accommodations after
[***35] World War II. That statute, and the
statutes and regulations which followed it, 5
were designed to monitor the housing market to
prevent unreasonable and oppressive rents. These
laws regulate the terms and conditions of
rent-controlled tenancies exclusively; owners can
evict tenants or occupants only on limited
specified grounds (9 NYCRR part 2104 [State];
2204 [City of New York]) and only with the
permission of the administrative agency.
The
rent-stabilization system originated in 1969. It
is a less onerous regulatory scheme, conceived as
a compromise solution to permit regulation of an
additional 400,000 previously uncontrolled
properties but also to allow landlords reasonable
latitude in controlling the use of the newly
regulated properties. One of its principal
purposes was to encourage new construction. As
both the Rent Control Law and the Rent
Stabilization Law make clear, the Legislature
contemplated that eventually rent control would
end as rent-controlled tenancies terminated, and
thereafter became subject to rent [*217]
stabilization (see generally, Sullivan v
Brevard Assocs., 66 NY2d 489, 494-495; 8200 Realty
Corp. v Lindsay, 27 NY2d 124, 136-137).
[***36] These programs were adopted
notwithstanding the Legislature's 6 expressed
sentiment that the "ultimate objective of
state policy" was the "normal market of
free bargaining between a landlord and
tenant" (compare, legislative finding for
Emergency Tenant Protection Act of 1974 [the
enabling legislation for rent stabilization], L
1974, ch 576, § 4 [§ 2], McKinney's Uncons Laws
of NY § 8622, with legislative finding for Local
Emergency Housing Rent Control Act [the enabling
legislation for the city Rent Control Law], L
1962, ch 21, § 1 [2], McKinney's Uncons Laws of
NY § 8602). Manifestly, judicial decisions which
permit the indefinite extension of
rent-controlled tenancies run counter to the
legislative goal of eventually eliminating rent
control while maintaining some measure of
stability in the residential housing market.
A limited
exception to the general rule that
rent-controlled properties, when vacated, become
subject to rent stabilization is found in section
2204.6 (d). It provides that: "(d) 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 [***37]
deceased tenant's family who has been living with
the tenant" 7 (9 NYCRR 2204.6 [d] [emphasis
added]).
Occupants who
come within the terms of the section obtain a new
statutory rent-controlled tenancy. Those eligible
are identified by the italicized phrase but
nowhere in the regulations or in the rent-control
statutes is the phrase or the word
"family" defined. Notably, however,
family is linked with spouse, a word of clearly
defined legal content. Thus, one would assume
that the draftsman intended family to [**58] be
given its ordinary and commonly accepted meaning
related in some way to customary legal
relationships established by birth, marriage or
adoption. The plurality, however, holds that the
exception provided in the regulation includes
relationships outside the traditional family. In
my view, it does not.
Analysis starts
with the familiar rule that a validly enacted
regulation has "the force and effect of
law" (see, Molina v Games Mgt. Servs., 58
NY2d 523, 529; Matter of Bernstein v Toia,
43 NY2d 437, 448); it should be interpreted
no differently than a statute (Matter of
Cortland-Clinton, Inc. v New York State Dept. of
Health, 59 AD2d 228, 231). [***38] As such,
the regulation should 8 not be extended by
construction beyond its [*218] express terms or
the reasonable implications of its language
(McKinney's Cons Laws of NY, Book 1, Statutes §
94) and absent further definition in the
regulation or enabling statutes, the words of the
section are to be construed according to their
ordinary and popular significance (People v
Cruz, 48 NY2d 419, 428).
Central to any
interpretation of the regulatory language is a
determination of its purpose. There can be little
doubt that the purpose of section 2204.6 (d) was
to create succession rights to a possessory
interest in real property where the tenant of
record has died or vacated the apartment (Matter
of Herzog v Joy, 53 NY2d 821, affg 74 AD2d
372). It creates a new tenancy for every
surviving family member living with decedent at
the time of death who then becomes a new
statutory tenant until death or until he or she
vacates the apartment. The State concerns
underlying this provision include the orderly and
just succession of property interests (which
includes protecting a deceased's spouse and
[***39] family from loss of their longtime home)
and the professed State 9 objective that there be
a gradual transition from government regulation
to a normal market of free bargaining between
landlord and tenant. Those objectives require a
weighing of the interests of certain individuals
living with the tenant of record at his or her
death and the interests of the landlord in
regaining possession of its property and
rerenting it under the less onerous
rent-stabilization laws. The interests are
properly balanced if the regulation's exception
is applied by using objectively verifiable
relationships based on blood, marriage and
adoption, as the State has historically done in
the estate succession laws, family court acts and
similar legislation (see, Matter of Lalli, 43
NY2d 65, 69-70, affd 439 U.S. 259).
The distinction is warranted because members of
families, so defined, assume certain legal
obligations to each other and to third persons,
such as creditors, which are not imposed on
unrelated individuals and this legal
interdependency is worthy of consideration in
determining which individuals are entitled to
succeed to the interest [***40] of the statutory
tenant in rent-controlled premises. Moreover,
such an interpretation 0 promotes certainty and
consistency in the law and obviates the need for
drawn out hearings and litigation focusing on
such intangibles as the strength and duration of
the relationship and the extent of the emotional
and financial interdependency (see, Morone v
Morone, 50 NY2d 481, 486; People v Allen,
27 NY2d 108, 112-113). So limited, the
regulation may [*219] be viewed as a tempered
response, balancing the rights of landlords with
those of the tenant. To come within that
protected class, individuals must comply with
State laws relating to marriage or adoption.
Plaintiff cannot avail himself of these
institutions, of course, but that only points up
the need for a legislative solution, not a
judicial one (see, Matter of Robert Paul P.,
63 NY2d 233, 235, n 1; Morone v Morone,
supra, at 489).
Aside from these
general considerations, the language itself
suggests the regulation should be construed along
traditional lines. Significantly, although the
problem of unrelated [***41] [**59] persons
living with tenants in rent-controlled apartments
has existed for as long as rent control, there
has been no effort by the 1 State Legislature,
the New York City Council or the agency charged
with enforcing the statutes to define the word
"family" contained in 9 NYCRR 2204.6
(d) and its predecessors and we have no direct
evidence of the term's intended scope. The
plurality's response to this problem is to turn
to the dictionary and select one definition, from
the several found there, which gives the
regulation the desired expansive construction. *
I would search for the intended meaning by
looking at what the Legislature and the Division
of Housing and Community Renewal (DHCR), the
agency charged with implementing rent control,
have done in related areas. These sources produce
persuasive evidence that both bodies intend the
word family to be interpreted in the traditional
sense.
* For
example, the definitions found in Black's Law
Dictionary 543 (Special Deluxe 5th ed) are:
"Family. The meaning of word 'family'
necessarily depends on field of law in which
word is used, purpose intended to be
accomplished by its use, and facts and
circumstances of each case * * * Most
commonly refers to group of persons
consisting of parents and children; father,
mother and their children; immediate kindred,
constituting fundamental social unit in
civilized society * * * A collective body of
persons who live in one house and under one
head or management. A group of
blood-relatives; all the relations who
descend from a common ancestor, or who spring
from a common root. A group of kindred
persons * * * Husband and wife and their
children, wherever they may reside and
whether they dwell together or not"
(citations omitted). The term is similarly
defined in the other dictionaries cited in
the plurality opinion.
[***42] 2
The legislative
view may be found in the "roommate" law
enacted in 1983 (Real Property Law § 235-f, L
1983, ch 403). That statute granted rights to
persons living with, but unrelated to, the tenant
of record. The statute was a response to our
unanimous decision in Hudson View Props. v
Weiss (59 NY2d 733; see, legislative findings
to ch 403, set out as note [*220] after Real
Property Law § 226-b, McKinney's Cons Laws of
NY, Book 49, at 130). In Hudson View the
landlord, by a provision in the lease, limited
occupancy to the tenant of record and the
tenant's "immediate family". When the
landlord tried to evict the unmarried
heterosexual partner of the named tenant of
record, she defended the proceeding by claiming
that the restrictive covenant in the lease
violated provisions of the State and City Human
Rights Laws prohibiting discrimination on the
basis of marital status. We held that the
exclusion had nothing to do with the tenants'
unmarried status but depended on the lease's
restriction of occupancy to the tenant and the
tenant's "immediate family".
Implicitly, we decided that the term
"immediate family" did not include
individuals [***43] who were unrelated 3 by
blood, marriage or adoption, notwithstanding
"the close and loving relationship" of
the parties.
The
Legislature's response to Weiss was measured. It
enacted Real Property Law § 235-f (3), (4) which
provides that occupants of rent-controlled
accommodations, whether related to the tenant of
record or not, can continue living in
rent-controlled and rent-stabilized apartments as
long as the tenant of record continues to reside
there. Lease provisions to the contrary are
rendered void as against public policy (subd
[2]). Significantly, the statute provides that no
unrelated occupant "shall * * * acquire any
right to continued occupancy in the event the
tenant vacates the premises or acquire any other
rights of tenancy" (subd [6]). Read against
this background, the statute is evidence the
Legislature does not contemplate that individuals
unrelated to the tenant of record by blood,
marriage or adoption should enjoy a right to
remain in rent-controlled apartments after the
death of the tenant (see, Rice, The New Morality
and Landlord-Tenant Law, 55 NYS Bar J [No. 6] 33,
41 [postscript]).
There is similar
evidence of how DHCR intends the section [***44]
to operate. Manifestly, 4 rent stabilization and
rent control are closely related in purpose. Both
recognize that, because of the serious ongoing
public emergency with respect to housing in the
[**60] City of New York, restrictions must be
placed on residential housing. The DHCR
promulgates the regulations for both
rent-regulation systems, and the eviction
regulations in rent control and the exceptions to
them share a common purpose with the renewal
requirements contained in the Rent Stabilization
Code (compare, 9 NYCRR 2204.6 [d], with 9 NYCRR
2523.5 [b]). In the Rent Stabilization Code, the
Division of [*221] Housing and Community Renewal
has made it unmistakably clear that the
definition of family includes only persons
related by blood, marriage or adoption. Since the
two statutes and the two regulations share a
common purpose, it is appropriate to conclude
that the definition of family in the rent-control
regulations should be of similar scope.
Specifically,
the rent-stabilization regulations provide under
similar circumstances that the landlord must
offer a renewal lease to "any member of such
tenant's family * * * who has resided in the
housing accommodation as a primary [***45]
resident from the inception 5 of the tenancy or
commencement of the relationship" (9 NYCRR
2523.5 [b] [1]; see also, 2523.5 [b] [2]). Family
for purposes of these two provisions is defined
in section 2520.6 (o) as: "A husband, wife,
son, daughter, stepson, stepdaughter, father,
mother, stepfather, stepmother, brother, sister,
nephew, niece, uncle, aunt, grandfather,
grandmother, grandson, granddaughter,
father-in-law, mother-in-law, son-in-law, or
daughter-in-law of the tenant or permanent
tenant".
All the
enumerated relationships are traditional, legally
recognized relationships based on blood, marriage
or adoption. That being so, it would be
anomalous, to say the least, were we to hold that
the agency, having intentionally limited
succession rights in rent-stabilized
accommodations to those related by blood,
marriage or adoption, intended a different result
for rent-controlled accommodations; especially so
when it is recognized that rent control was
intended to give way to rent stabilization and
that the broader the definition of family
adopted, the longer rent-controlled tenancies
will be perpetuated by sequentially created
family members entitled to new tenancies. These
[***46] expressions by the Legislature 6 and the
DHCR are far more probative of the regulation's
intended meaning than the majority's selective
use of a favored dictionary definition.
Finally, there
are serious practical problems in adopting the
plurality's interpretation of the statute. Any
determination of rights under it would require
first a determination of whether protection
should be accorded the relationship (i.e.,
unmarrieds, nonadopted occupants, etc.) and then
a subjective determination in each case of
whether the relationship was genuine, and
entitled to the protection of the law, or
expedient, and an attempt to take advantage of
the law. Plaintiff maintains that the machinery
for such decisions is in place and that
appropriate guidelines can be constructed. He
refers [*222] particularly to a formulation
outlined by the court in 2-4 Realty Assocs. v
Pittman (137 Misc 2d 898, 902) which sets
forth six different factors to be weighed. The
plurality has essentially adopted his
formulation. The enumeration of such factors, and
the determination that they are controlling, is a
matter best left to Legislatures because it
involves the type of policy [***47] making the
courts should avoid (see, 7 People v Allen, 27
NY2d 108, 112-113, supra), but even if these
considerations are appropriate and exclusive, the
application of them cannot be made objectively
and creates serious difficulties in determining
who is entitled to the statutory benefit. Anyone
is potentially eligible to succeed to the
tenant's premises and thus, in each case, the
agency will be required to make a determination
of eligibility based solely on subjective factors
such as the "level of emotional and
financial commitment" and "the manner
in which the parties have conducted their
everyday lives and held themselves out to
society" (plurality opn, at 212).
By way of
contrast, a construction of the regulation
limited to those related to the tenant by blood,
marriage or adoption provides an objective basis
for determining who is entitled to succeed to the
premises. [**61] That definition is not, contrary
to the claim of the plurality, "inconsistent
with the purposes of the rent-control
system" and it would not confer the benefit
of the exception on "distant blood
relatives" with only superficial
relationships to the deceased (plurality opn,
[***48] at 210). Certainly it does not "cast
an even wider 8 net" than does the
plurality's definition (plurality opn, at 211, n
1). To qualify, occupants must not only be
related to the tenant but must also "[have]
been living with the tenant" (see, 22 NYCRR
2204.6 [d]). We applied the "living
with" requirement in 829 Seventh Ave. Co.
v Reider (67 NY2d 930), when construing the
predecessor to section 2204.6 (d), and refused to
extend the exception to a woman who occupied an
apartment for the five months before the death of
her grandmother, the statutory tenant, because
she was not "living with" her
grandmother. We held that the granddaughter, to
be entitled to the premises under the exception,
was required to prove more than blood
relationship and cooccupancy; she also had to
prove an intention to make the premises her
permanent home. Since she had failed to establish
that intention, she was not entitled to succeed
to her grandmother's tenancy. That ruling
precludes the danger the plurality foresees that
distant relatives will be enabled to take [*223]
advantage of the exception contained in section
2204.6 (d) (cf., 9 NYCRR 2523.5 [b] [1], [***49]
[2]).
Rent control
generally and section 2204.6, in particular, 9
are in substantial derogation of property owners'
rights. The court should not reach out and devise
an expansive definition in this policy-laden area
based upon limited experience and knowledge of
the problems. The evidence available suggests
that such a definition was not intended and that
the ordinary and popular meaning of family in the
traditional sense should be applied. If that
construction is not favored, the Legislature or
the agency can alter it as they did after our
decisions in Hudson View Props. v Weiss (59
NY2d 733, supra) and Sullivan v Brevard
Assocs. (66 NY2d 489, supra).
Accordingly, I
would affirm the order of the Appellate Division.
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