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Succession Rights: A Harsh New Landscape For Tenants And Their Families-Part I

Over the years, I have successfully represented many clients in succession cases. In the past, succession rights cases were straightforward and simple. Generally, a practitioner would look at three (3) factors: (a) first, the date the tenant of record left or vacated the premises; (b) second, whether the person asserting succession rights and the tenant of record had a close traditional or "Braschi1" family relationship; and (c) third, whether the putative successor resided with the tenant of record for at least two years prior to the date the latter left or vacated. Succession was almost guaranteed to a remainder family member who could prove these three factors.

Lately, I have on too many occasions had the unenviable task of having to convince my clients that the landscape has dramatically changed. The most difficult and heart-wrenching succession cases involve clients who were born or raised in the apartment, and never left; whose parents are the tenant of record, but moved out gradually over the years rather than abruptly or suddenly; and who continue to maintain a close and supporting relationship with their parents.

How did the Rent Stabilization or Rent Control Laws - the primary purpose of which is to prevent disruptive practices, dislocation, uncertainty, exactions and oppressive rents - come to permit the eviction of such persons from their home. What changed? What common mistakes tenants and their families make in these types of cases? What can they do to ensure that they are not victim of this changing landscape?

In this and other blogs, I will attempt to answer these questions. First, we should look at a recent reported case, which illustrates the contours of this new landscape. The facts and procedural posture in Malone v Sapinsky, 2011 NY Slip Op 51044(U), 31 Misc 3d 1239(A), decided on June 13, 2011, are straightforward. Petitioner-Landlord commenced the case, alleging that Joseph Sapinsky (the tenant of record) was not using the apartment as his primary residence. The tenant of record and his daughter appeared and raised two defenses: first, that petitioner-landlord had accepted rent after service of the predicate notice, and therefore could not maintain the proceeding; and second, that the daughter had succession rights should the Court find that the tenant of record was no longer primarily residing in the apartment.

As ordinarily happens in this type of cases, the proceeding was marked off the calendar for discovery. The record reveals that the tenant of record was not deposed because he suffers from dementia. The daughter however was deposed. After discovery, petitioner moved for summary for judgment.

Judge David Kaplan found a number of facts to be undisputed. First, the Court found that the tenant of record stopped primarily residing in the apartment since 2003, although he continued to periodically use the apartment over the next couple of years. Second, the Court also found that 2004 through 2008, the petitioner-landlord offered the tenant of record on three (3) separate occasions lease renewals. In each of those three occasions, the daughter failed to assert her succession rights, and instead brought the offers to her father, who signed and returned them to Petitioner-Landlord. Third, the Court also found that the tenant of record continued to pay the rent each month in his own name, drawn from an account with the subject premises listed as the address.

Judge Kaplan found that under these undisputed facts, "the daughter waived her right to assert her succession claim." The Court reasoned that "In instances where the tenant of record and the potential successor tenant distort the fact that the tenant has vacated the premises by continuing to pay the monthly rent and executing renewal leases in the tenant of record's name, then the permanent vacatur date is generally defined as the date the last renewal lease expired". Thus, the Court found that earliest date that the tenant of record could have been deemed to have permanently vacated the subject premises for purposes of a succession claim is July 2010 when the last renewal lease expired". The Court concluded that since during the immediate preceding two-year period there was no showing that the tenant of record lived with his daughter in the premises, summary judgment in favor of the landlord and against the tenant of record and his daughter was appropriate. Lastly, the Court announced this guiding principle : "

The Petitioner-landlord was awarded a final judgment of possession; the warrant of eviction was issued forthwith, but stayed through August 31, 2011. The tenant of record and his daughter were required to pay ongoing use and occupancy without prejudice to the Petitioner-Landlord's right to request market rate use and occupancy. The matter was further restored to the calendar for a hearing to determine the reasonable amount of attorneys' fees Petitioner-Landlord incurred in the proceeding and was entitled to recover from the tenant of record and the daughter.

NEXT: WHAT HAPPENED? HOW COULD THE TENANT AND HIS DAUGHTER LOSE SO BADLY? WHAT COULD THEY HAVE DONE DIFFERENTLY? WHAT ARE THE NEW FACTORS TENANTS MUST PROVE TO PREVAIL IN SUCCESSION CASES?

Serge Joseph


1 In Braschi v Stahl Associates Co., 74 NY2d 201, 544 NYS2d 784, 543 NE2d 49 (1989) the Court of Appeals expanded the concept of family to include a homosexual couple for the purpose of succession rights to a Rent Controlled apartment.