A Hard Fought Tenancy Case

Brooklyn Housing Court finds gay surviving partner can stay; landlord promises appeal

New York City Civil Court Judge Marcia J. Sikowitz ruled on October 14 that Bobby Miles was the surviving family member of Richard Cason, and thus entitled to assume the rent stabilized lease on the apartment the couple shared since the 1980s.

The ruling came after a trial that stretched over several weeks and involved 16 witnesses and 40 exhibits. The landlord, Louis LaMarche, strongly disputes the result, and his attorney has indicated that an appeal will be filed.

Sikowitz’s lengthy opinion, which discusses the lives Cason and Miles shared in excruciating detail, demonstrates how important it is that the regulations adopted in the wake of the 1989 landmark ruling in Braschi v. Stahl Assoc. Co.—which recognized that a surviving same-sex life partner could be considered a tenant’s family member for purposes of succession rights to rent controlled apartments—are as flexible as they are. The New York State Department of Housing and Community Renewal was responsible for crafting guidelines for rent controlled apartments in the wake of Braschi and subsequently extended them to rent stabilized units as well.

After they began dating in the early 1980s, Cason invited Miles to move into his four-bedroom Brooklyn apartment, in which other roommates also lived from time to time. Cason had severe diabetes and drew his income from public benefits. Near the end of his life, he suffered the amputation of both legs. Miles got a modestly-paying, part-time clerical job with the city, and spent most of the rest of his time caring for Cason, who died in April 2004. The landlord then moved to evict Miles as an “illegal licensee,” claiming he was just one of the many “roommates” Carson had over the years.

Anette Bonelli, an attorney Miles found through DC-37 Municipal Employees Legal Services, got the eviction forestalled and assembled evidence that proved that the couple was a family, a daunting task given that Cason was dead and the couple lacked the financial assets and investments that could have documented their interdependence. An investigator hired by the landlord found that the men did not have a joint bank account, that Miles was registered to vote and paid his taxes from a different address—the Brooklyn apartment where he grew up and some of his family still lived—and that during a rent dispute two years earlier Miles had identified himself as Cason’s “nephew.”

Also, the men had not registered with New York City as domestic partners and had not made wills. The two life insurance policies Cason maintained were payable to his mother, who predeceased him, and his sister; the proceeds were used to pay for his funeral.

Miles and his witnesses presented extensive testimony and documentation to show that he lived in the apartment, and had done so continuously during the critical two-year period prior to Cason’s death, as required by the regulations, and that the men had a close and committed relationship in which Miles devotedly cared for his late partner throughout his entire illness.

Relatives of both men treated the couple as family members, and regularly visited them in their apartment and joined them for holidays. The evidence in the trial detailed the many personal acts of care Miles provided his partner, including helping him get from his wheelchair to the toilet. Significantly, Cason designated Miles his health care proxy in a written document.

In her ruling, Sikowitz emphasized that the tenant succession regulations were not intended as a rigid checklist but rather as among the factors to be considered in deciding whether two partners were family members.

“The factors to consider are malleable,” she wrote, “and are to be examined in the context of the realities of life.” She specifically noted that it might be “unrealistic to expect a gay couple to hold themselves out as a family to the public,” in cases such as the rent dispute in which Miles said he was Cason’s nephew.

“The evaluation of the testimony and documentary evidence is not merely a ministerial act of going down a check list of factors,” Sikowitz wrote. “A family is a family, whether the members are legally married husband and wife, or ‘nontraditional’ gay life partners. Both men had limited incomes, owned no property, had no savings to speak of, and no investments. It is true that neither Cason nor respondent had a will… However, it is the amalgam of enumerated factors that give rise to the essence of a family that feels like, looks like, and works like a family unit, and based on every enumerated factor the court is to consider, respondent and Richard Cason were a family.”

Finding that Miles had met his burden of proving that he was a surviving family member, Sikowitz ruled that the landlord’s petition to oust him from the apartment should be dismissed.

The New York Law Journal of November 2 quoted Michele Slochowsky-Hering, the landlord’s attorney, as saying, “We intend to appeal the decision. There’s a determination and a weighing of eight specific factors. None of them as far as we are concerned were met. There was other evidence and testimony that in our opinion were ignored.”

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