Adam Leitman Bailey, P.C., Wins Certificate of Eviction After Prevailing At Mitchell-Lama Non-Primary Residence and Illegal Sublet Hearing at HPD

By Vladimir Mironenko

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Adam Leitman Bailey, P.C., routinely represents Mitchell-Lama governed buildings at the Department of Housing Preservation and Development. As with rent stabilized and rent controlled apartments in New York City, primary residence is required in Mitchell-Lama buildings. Unauthorized subletting is not allowed. Where a shareholder or tenant violates the rules, the landlord must obtain a certificate of eviction from HPD before commencing an eviction proceeding against the offender.

Recently, when a subtenant of one of its shareholders submitted a move out request, our client realized that the shareholder was not residing in the apartment and alerted our office.

We performed a detailed investigation and learned that the shareholder owned two other properties, had mortgages on the other properties, was registered to vote elsewhere, received tax benefits for another property that are only available where the property is a primary residence, registered a car at one of the other properties, and obtained additional information and documentation demonstrating that she was primarily residing away from be subject apartment and was subletting it. This evidence would typically be enough for a landlord to prevail at a hearing.

However, the smoking gun was the subtenant. We immediately contacted the subtenant who confirmed the facts and agreed to testify on the landlord’s behalf. The subtenant was able to demonstrate that she filed tax returns at the premises for many years, was registered to vote at the premises, had a NYS driver’s license with the address of the premises, and had multiple other accounts and received mail at the premises. Moreover, the subtenant had canceled checks, deposit slips and carbon copies of payment slips representing years and years of payments that she made to the shareholder for occupancy of the premises.

This was too much for the shareholder to overcome.

With this ammunition in hand, we served the required predicate notices upon the shareholder and scheduled the HPD hearing. The shareholder retained an attorney to oppose our case.

On the first day of the hearing Adam Leitman Bailey, P.C., presented the landlord’s evidence and witnesses. We also caught the shareholder by surprise and unprepared by calling her as one of the landlord’s own witnesses and obtaining the most damning admissions and introducing the most damning evidence directly through the shareholder.

By the second day of the hearing the shareholder had fired her first attorney and hired new counsel. The matter proceeded with several days of testimony and multiple witnesses.

After both sides rested and after a complete review of the record, the HPD Hearing Officer ruled in favor of our client and issued a certificate of eviction against the shareholder ruling that the documentary evidence, coupled with the testimony of the subtenant and the lack of credibility of the shareholder and her witnesses required a finding for the landlord.

Vladimir Mironenko of Adam Leitman Bailey, P.C., represented the Mitchell-Lama building.

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