NEW YORK STATE COURT OF APPEALS HOLDS THAT FAILURE TO BE LISTED ON ONE INCOME AFFIDAVIT DOES NOT PRECLUDE SUCCESSION IN A MITCHELL-LAMA APARTMENT WHERE THERE IS EVIDENCE OF CO-OCCUPANCY

In a ruling with far reaching consequences for residents of Mitchell Lama apartments, the New York State Court of Appeals ruled today that the failure to be listed on one income affidavit is not a bar to succession for a person who has an otherwise valid succession claim. The caseMurphy v DHCRinvolved a life-long resident of Southbridge Towers, a DHCR supervised Mitchell Lama in lower Manhattan whose succession claim was denied because his mother failed to file one annual income affidavit in the two years before she vacated. The DHCR had held that the lack of the single income affidavit was fatal even though there was overwhelming evidence that Mr. Murphy had lived in the apartment with his mother for the two years before she vacated and for the prior 19 years, since he as one month old. DHCR’s decision was reversed by Supreme Court Judge Alice Schlesinger who held that the primary inquiry in a succession claim is whether the person seeking succession had lived with the tenant for the requisite two years prior to the tenant vacating. Judge Schlesinger’s decision was unanimously affirmed by the Appellate Division, First Department. The Court of Appeals affirmed in a four to three vote. David Hershey-Webb, partner at HMGJ who litigated the case said “this was a big victory for both for my client who has lived in the apartment his whole life and for the principle of basic fairness over administrative efficiency.”