In December 2013, the New York State Court of Appeals ruled in Murphy v. DHCR, that a long-term Mitchell-Lama resident has succession rights even though his mother had not named him on one “income affidavit.” Mr. Murphy was represented by HMGDJ partner Samuel Himmelstein. Three recent decisions, an Appellate Term, 2nd Department decision, a Housing Court (Kings County) decision and a DHCR Mitchell-Lama succession determination have cited Murphy in upholding succession claims.
In what could be the most far reaching decision, the Appellate Term, Second Department in Mexico Leasing LLC v. Jones, held that a long-term resident had succession even though her mother had moved out of the apartment more than 10 years before the succession claim and retained ties to the apartment. The court cited Murphy for the principle that the overall purpose of the succession provisions is to permit long-term residents who are family members (or “non-traditional family members) to remain in an apartment after the tenant has permanently vacated and that while the successor must have maintained the apartment as her primary residence, the tenant’s failure to do so may not be fatal to a succession claim. The decision is important because a number of other decisions have denied succession where tenants have maintained ties to an apartment after moving out.
In Eastern Parkway v. Rivera, Judge Sikowitz of Housing Court (Kings County) held that the failure of the tenant to list her granddaughter in Section 8 recertifications did not bar the granddaughter’s succession claim. Again the court cited the Murphy Court’s recognition of the public policy purpose of the succession provisions – to prevent dislocation of long-term residents when the head of household vacates.
In Matter of Scott, the DHCR reversed the decision of a Mitchell Lama Housing Company and held that Ms. Scott, a long-time resident, had succession rights even though her grandparents had not listed her on some income affidavits.
Given the ongoing and worsening affordable housing crisis and the overall purpose of the succession provisions, an approach to succession that focuses on the period of time the succession claimant resided in the apartment and actual co-occupancy, rather than income certification requirements or the tenant’s continued connections to the apartment, makes sense and is a welcome development.