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; 544 N.Y.S.2d 784; 1989 N.Y. LEXIS 877
April 26, 1989, Argued July 6, 1989, Decided
SUBSEQUENT HISTORY:
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 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 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 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 , 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; 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 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 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 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 , 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 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.