Partner of Missing Manhattan Tenant Entitled to Succession Rights in NYC Apartment

When Marco Smythe mysteriously disappeared on January 9, 2006, leaving behind several months of unpaid rent bills, the landlord, Westprop Corp., filed suit to reclaim possession of Apartment 44 at 165 West 83^rd Street, even though Daniel Carrier, who had lived with Smythe in the apartment for many years, claimed entitlement to stay in the rent stabilized apartment, having been named on a form that Smythe submitted to the landlord the previous spring. Ruling on October 3, New York County Civil Court Judge David B. Cohen Held that Carrier was entitled to be treated as a tenant-successor to the missing Mr. Smythe, finding that Carrier’s relationship with Smythe meets the regulatory criteria that were established back in the 1980s after the Court of Appeals’ Braschi decision.  Westprop Corp. v. Smythe, 2007 Westlaw 2915597 (not officially published).

In an interesting side-note to the case, Carrier attempted to file a missing persons report after Smythe’s disappearance, but the police refused to take a report from him "because he was not a relative," so the report was not filed until Smythe’s brother Rick came to New York to file the report. Smythe is apparently still missing.

Smythe first rented the apartment in 1981. He met Carrier at a party in the spring of 1985, and after several months of dating asked him to move into the apartment, which has been Carrier’s home since October 1985, as he proved to the court through documentary evidence. According to the opinion, the men’s "romantic involvement" continued until about the mid-nineties, then subsided into a non-sexual partnership in which Carrier testified that he considered them to be "family." They visited with each others’ biological family members, and Carrier testified about the relationship he had formed with Smythe’s brother and sister-in-law.

They did not merge their finances, but split expenses proportionately with their income, Carrier paying the larger share of rent and household expenses. Carrier was able to document various purchases he had made over the years of household items for the apartment. Smythe cooked dinner and Carrier cleaned up afterwards. They shared mutual friends and, according to the testimony of several friends, the men were regarded as a "couple" by those who knew them.

They were not open about their sexual orientation apart from their immediate circle of friends, however. "According to Mr. Carrier’s testimony, they did not tell family members, co-workers, or society in general of their sexual orientation or their relationship. However, respondent [Carrier] introduced numerous photographs of himself and Mr. Smythe with each other among family and friends, and a number of postcards they sent to one another, evidencing their close relationship." They took short vacations and weekend trips together, during which they customarily split expenses.

Perhaps most significantly, in May 2005, Smythe signed a state agency form notifying the landlord of family members residing in the apartment, on which he named Carrier as a "family member" who would be entitled to succession rights. The landlord accepted the form without protest at that time. Smythe evidently stopped paying rent during the summer of 2005, even though he continued to cash Carrier’s rent checks, and then mysteriously disappeared in January.

Under these circumstances, Judge Cohen concluded that Carrier had established tenant succession rights to the apartment. The lack of joint wills, powers of attorney, or domestic partnership was not considered crucial by the judge, who noted that the criteria set out in the regulations required a consideration of all the circumstances, and not just a focus on particular individual criteria. Neither was it relevant that the men’s relationship did not involve sexual relations for the past decade, since the regulations specify that there be no inquiry into sexual matters as part of the determination.

"Mr. Smythe and Mr. Carrier never held themselves out as a couple to their families," wrote Cohen, "their co-workers, or society as a whole. It has been held to be ‘unrealistic’ to expect a gay couple to hold themselves out as a family to the public of family members. While they did not publicly hold themselves out to be a couple as a ‘traditional’ couple would, there was the credible and consistent testimony from five close mutual friends to the fact that they were, and appeared to be, a couple."

Thus, the court concluded that Carrier "has proved an emotional and financial commitment and interpendence as required" by the regulations, and, "based on the totality of the evidence, a dedicated, caring and self-sacrificing family relationship between Mr. Carrier and Mr. Smythe," entitling Carrier to remain in the apartment as a rent stabilized tenant. Cohen ordered the landlord to provide Carrier with a rent stabilized lease naming him as the tenant within twenty days of the date of the decision. The landlord could attempt to appeal this ruling to the Appellate Term of the Supreme Court in Manhattan.