Landlord & Tenant

AppDiv, First Dept.

(memorandum opinion)

In landlord's nonprimary residence proceeding, tenant of record's sister appealed from Supreme Court's award of possession to landlord. The Appellate Division affirmed, holding that the sister had not demonstrated that she had acquired succession rights to the apartment.

Cynthia, tenant of record, entered into possession of the rent-stabilized apartment in November 1995, pursuant to a two-year lease. Linda apparently began living in the apartment with Cynthia in 1995. Cynthia vacated in 1998 and established a residence elsewhere, but continued to execute renewal leases and pay rent until November 2005. In August 2005, landlord brought this nonprimary residence proceeding on the ground that the tenant of record no longer lived in the apartment. After a nonjury trial, Supreme Court granted the petition and awarded landlord a judgment of possession. Linda appealed.

In affirming, the Appellate Division started by saying that Cynthia could not be found to have permanently vacated the apartment until 2005, at the expiration of her last renewal lease. As a result, the court held that Linda had to prove that she resided in the apartment with Cynthia for two years between 2003 and 2005. Although Linda established that she lived in the apartment during that period, she did not establish that Cynthia lived in the apartment during that time. Therefore, Linda failed to establish that she was a co-occupant with Cynthia during the relevant time period.

COMMENT

The family member of a rent-stabilized housing tenant is entitled to succession rights as a tenant of the housing unit if that family member “has resided with the tenant in the housing accommodation as a primary residence for a period of no less than two years ' immediately prior to the permanent vacating of the housing accommodation by the tenant.” NY Rent Stabilization Code ' 2523.5(b)(1). Thus, the date that the tenant “permanently vacates” establishes the relevant two-year period for which the person claiming succession must show their co-residence with the tenant in the unit.

A tenant of record who no longer resides with the family member, but who continues to sign renewal leases, is deemed not to have permanently vacated until the date the last renewal lease expires. Thus, in Malone v. Sapinsky, 31 Misc.3d 1239(A), because the tenant was found to have signed lease renewals and paid rent in his own name for several years after his departure from the rent stabilized apartment, the rule was applied to deny the succession claim of his daughter, with whom he had lived before his departure. Similarly, in Clinton Realty Associates, LLC v. De Los Angeles, 29 Misc.3d 142(A), the husband's succession claim failed because he and his wife, the tenant of record, “undisputedly did not reside together in the apartment during the two-year period immediately preceding” the expiration of the last renewal lease that she executed.

Under this rule, a family member who would have been eligible for succession rights if she had exercised her claim before the tenant of record's departure loses those rights if they are not asserted until later. As one court observed: “To ensure the fair and orderly resolution of succession disputes, the governing Code provision contemplates the timely interposition of succession claims.” South Pierre Assoc. v. Mankowitz, 17 Misc.3d 53. And, “if a succession claim is not timely asserted, it tends to impair a landlord's ability to investigate and prosecute its rights. Thus, where an occupant does not timely assert a succession claim, it is generally deemed waived.”

Family Member Must Establish Succession Rights in Period Immediately Prior to Expiration of Final Lease

Third Lenox Terrace Associates v. Edwards

NYLJ 1/26/12, p. 22, col. 1

AppDiv, First Dept.

(memorandum opinion)

In landlord's nonprimary residence proceeding, tenant of record's sister appealed from Supreme Court's award of possession to landlord. The Appellate Division affirmed, holding that the sister had not demonstrated that she had acquired succession rights to the apartment.

Cynthia, tenant of record, entered into possession of the rent-stabilized apartment in November 1995, pursuant to a two-year lease. Linda apparently began living in the apartment with Cynthia in 1995. Cynthia vacated in 1998 and established a residence elsewhere, but continued to execute renewal leases and pay rent until November 2005. In August 2005, landlord brought this nonprimary residence proceeding on the ground that the tenant of record no longer lived in the apartment. After a nonjury trial, Supreme Court granted the petition and awarded landlord a judgment of possession. Linda appealed.

In affirming, the Appellate Division started by saying that Cynthia could not be found to have permanently vacated the apartment until 2005, at the expiration of her last renewal lease. As a result, the court held that Linda had to prove that she resided in the apartment with Cynthia for two years between 2003 and 2005. Although Linda established that she lived in the apartment during that period, she did not establish that Cynthia lived in the apartment during that time. Therefore, Linda failed to establish that she was a co-occupant with Cynthia during the relevant time period.

COMMENT

The family member of a rent-stabilized housing tenant is entitled to succession rights as a tenant of the housing unit if that family member “has resided with the tenant in the housing accommodation as a primary residence for a period of no less than two years ' immediately prior to the permanent vacating of the housing accommodation by the tenant.” NY Rent Stabilization Code ' 2523.5(b)(1). Thus, the date that the tenant “permanently vacates” establishes the relevant two-year period for which the person claiming succession must show their co-residence with the tenant in the unit.

A tenant of record who no longer resides with the family member, but who continues to sign renewal leases, is deemed not to have permanently vacated until the date the last renewal lease expires. Thus, in Malone v. Sapinsky, 31 Misc.3d 1239(A), because the tenant was found to have signed lease renewals and paid rent in his own name for several years after his departure from the rent stabilized apartment, the rule was applied to deny the succession claim of his daughter, with whom he had lived before his departure. Similarly, in Clinton Realty Associates, LLC v. De Los Angeles, 29 Misc.3d 142(A), the husband's succession claim failed because he and his wife, the tenant of record, “undisputedly did not reside together in the apartment during the two-year period immediately preceding” the expiration of the last renewal lease that she executed.

Under this rule, a family member who would have been eligible for succession rights if she had exercised her claim before the tenant of record's departure loses those rights if they are not asserted until later. As one court observed: “To ensure the fair and orderly resolution of succession disputes, the governing Code provision contemplates the timely interposition of succession claims.” South Pierre Assoc. v. Mankowitz, 17 Misc.3d 53. And, “if a succession claim is not timely asserted, it tends to impair a landlord's ability to investigate and prosecute its rights. Thus, where an occupant does not timely assert a succession claim, it is generally deemed waived.”