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Adam Leitman Bailey P.C. Wins Appeal in First Department Affirming its Trial Victory Representing a Landlord in a Succession Claim Holdover Proceeding

By Jeffrey R. Metz


In a February 2020 decision, the Appellate Term, First Department, affirmed the housing court’s February 2019 order after trial, which awarded possessory judgment to the landlord in a non-traditional family member succession proceeding concerning a rent stabilized apartment.

The Appellate Term Held in a unanimous decision:

A fair interpretation of the evidence supports the trial court’s finding that respondent . . . failed to meet her affirmative obligation to prove “emotional and financial commitment, and interdependence between [herself] and the tenant” such as would entitle her to succeed to the subject rent stabilized apartment.

The occupant moved into the apartment with the tenant years ago. There was no dispute that the pair co-resided together for at least the requisite two years. However, the occupant did not share a blood relationship with the tenant and the two were never married. She was decades younger than the tenant, and originally moved in as a roommate. She paid a portion of the rent and the utilities, and alleged that the pair shared other expenses.

Adam Leitman Bailey, P.C., commenced a holdover proceeding against the occupant. Discovery revealed that the occupant did not share financial accounts with the tenant. Despite the tenant being extremely ill, the occupant was not the tenant’s health care proxy. She was also not named in his will and was not the beneficiary on his life insurance policy. Furthermore, the occupant lacked pictures of herself with the tenant. However, the occupant had a notarized affidavit from the tenant in which he asked for her to be added to the lease as a family member.

At trial, the occupant testified, with tears in her eyes, about how she took great care of the tenant, even when he was gravely ill. She explained taking him to medical appointments, spending time with him and how she considered herself and the tenant family.

Several building residents testified on the occupant’s behalf. They testified they had observed the occupant with the tenant, and that the occupant took good care of the tenant and they considered the pair as family.

We cross-examined each witness in great detail to show what the tenant and occupant lacked in their relationship. We demonstrated on cross-examination that the pair never exchanged a holiday or birthday card; never took a picture together; never traveled together; lacked joint financial accounts or obligations; and were not associated with the other’s medical insurance. Additionally, the occupant did not make any medical decisions on the tenant’s behalf. The pair did not share any utility accounts, and the tenant never met the occupant’s real family, whom also lives in New York. We were able to elicit testimony from the occupant admitting that she was not the tenant’s sole caretaker, and that there were other friends who would accompany the tenant to hospital and doctor’s visits.

The lower court found in favor of our client. The Appellate Term agreed with the lower court and adopted our arguments, holding that:

In this regard, respondent acknowledged that they did not share bank accounts, bank cards, credit cards or loan obligations, nor was respondent a recipient of tenant’s social security, a dependent on his tax returns, a beneficiary of his will, life insurance or retirement account, and respondent admitted that she did not take care of tenant’s finances and did not know who did. In addition, tenant gave his sister power of attorney and appointed her as the executrix of his estate.

While respondent testified she was subsequently present for tenant “24/7” when he became ill, the court correctly noted that she was employed outside the home and “testimony revealed that [tenant’s] friends helped take care of him.”

Jeffrey R. Metz and Vladimir Mironenko represented the landlord on appeal. Vladimir Mironenko conducted the trial in housing court.

Adam Leitman Bailey, P.C.

NEW YORK REAL ESTATE ATTORNEYS