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Cooperative Landlord Wins Eviction In Non-Primary Residence Case: Adam Leitman Bailey, P.C. Catches Fraud

By Christopher Halligan


The Board of Directors of our client, a Mitchell Lama cooperative, faced an overwhelming problem: they suspected that the shareholder of record of a unit in the cooperative was not residing in the unit as her primary residence.  However, all of the cooperative’s documentation – the stock certificate, proprietary lease, and household income affidavits – indicated that the shareholder did, in fact, live in the apartment.  However, given Adam Leitman Bailey’s extensive experience with non-primary residence cases, we knew that these documents were not dispositive of the shareholder’s residence and that further investigation would need to be done.

We sent a letter to the shareholder at the cooperative apartment, requesting documentary proof of her primary residence.  After the shareholder failed to provide any such proof within the required timeframe, we firmly believed that the Board’s suspicions were correct.  Thereafter, we served a Notice of Intention to Terminate at the cooperative apartment, giving the shareholder a second chance to provide documentary proof of her primary residence.  And, when the shareholder again failed to provide such proof, we started a case.

Knowing that a purported successor must prove the requisite familial relationship and cohabitation with the shareholder of record for the two years prior to the shareholder’s vacating the premises, we carefully studied the household income affidavits, the birth certificates, and all other documents provided by the shareholder’s brother to establish cohabitation.  Based on our review of the documents, we set out to prove at the hearing that a) a strong doubt existed as to the familial relationship between the shareholder and b) that the shareholder and her “brother” failed to cohabitate in the apartment for two years prior to the date on which the shareholder vacated the premises.

Consistent with Adam Leitman Bailey, P.C.’s argument that the shareholder no longer resided at the apartment as her primary residence, in the tenant-shareholder’s defense the “brother” presented his birth certificate and that of the shareholder as evidence of their familial relationship.  However, in their extensive investigation, the attorneys from Adam Leitman Bailey, P.C. uncovered that the initial application for the apartment, in fact, listed a different individual as the shareholder’s father.  The attorneys, through the presentation of the application as documentary evidence, showed that a serious doubt existed as to whether the man claiming succession rights to the apartment was, in fact, the shareholder’s brother.

Then, despite the presentation of numerous witnesses by opposing counsel who all testified to the contrary, Adam Leitman Bailey, P.C. established that while there may have been a short period of time when the shareholder and her “brother” lived in the apartment together, that time did not satisfy the two-year cohabitation requirement.  Specifically, through direct and cross-examination of the shareholder’s “brother,” Adam Leitman Bailey, P.C. called into doubt the claims that the shareholder’s “brother” lived in the apartment by presenting evidence of his alternative address and by pointing out the deficiencies in his attempts to explain away such evidence.  Second, and perhaps more significantly, the attorneys were able to conclusively establish that the shareholder moved out of the apartment only one year after the date the shareholder’s “brother” testified to moving into the apartment.  They were able to do so by presenting evidence of the shareholder’s residence in another state and by cross-examining each of opposing counsel’s witnesses to point out the serious credibility flaws in each witness’ testimony.

In a decision issued by the Court, the administrative law judge presiding over this case found the evidence presented by Adam Leitman Bailey, P.C. exceedingly credible and determined both that the shareholder of record does not reside in the apartment as her primary residence and that her “brother” is not entitled to succession rights.

Christopher Halligan and Courtney J. Lerias represented the Board in this case on behalf of the cooperative corporation.

Adam Leitman Bailey, P.C.

NEW YORK REAL ESTATE ATTORNEYS