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Adam Leitman Bailey, P.C., Uses “Non-Traditional Family” Succession Laws to Prevail at Trial for Landlord after Original Firm Throws in Towel

By Adam Leitman Bailey


In March of 2013, Adam Leitman Bailey, P.C., received an email from a prominent New York City landlord asking for help with a succession case. The occupant was attempting to succeed to a rent-controlled apartment after the recent death of the tenant of record. The occupant was in her early twenties. The monthly rent was less than $300. The potential long-term losses for the landlord were enormous.

A licensee case had already been started by another respected law firm. Discovery was over.

The client’s email to Adam Leitman Bailey, P.C., contained a copy of the transcript of the occupant’s deposition, copies of documents that the occupant produced in discovery and a note from the landlord’s attorney which read, “[t]here is little doubt in my mind that she has a valid succession claim to this apartment.”

That’s when the team at Adam Leitman Bailey, P.C., went to work.

Applicable law

Pursuant to the succession laws in New York, with certain exceptions, an individual may obtain rights to a rent-regulated apartment if she co-resided with the tenant of record for at least two-consecutive years before the tenant of record passed away or permanently vacated the apartment and if she is a “family member” of the tenant of record. Currently, the statutorily protected list of family members includes, “spouse, son, daughter, stepson, stepdaughter, father, mother, stepfather, stepmother, brother, sister, grandfather, grandmother, grandson, granddaughter, father-in-law, mother-in-law, son-in-law, or daughter-in-law of the tenant.” An individual who is not on this protected list can still obtain succession rights if she can demonstrate the required co-residency and demonstrate an emotional and financial commitment and interdependence between herself and the tenant of record.

Initial Factual Investigation

The team immediately undertook a detailed factual investigation into every aspect of the occupant’s life and the life of the tenant of record. We poured over every word and every number in the documents produced during discovery, including tax records, employment records, medical records, United States Postal Service records, bank statements, nursing home records, death records and affidavits. We became suspicious that the occupant’s documents began appearing at the subject apartment exactly two years and one month before the tenant of record’s death. Leaving no stone unturned, we performed our own due diligence and factual investigation checking public records and verifying the authenticity of the various documents.

We also uncovered that, at best, the occupant was the tenant of record’s first cousin twice removed, not a granddaughter as she had claimed.

Pre-Trial Strategy

We now knew that the occupant was a “non-traditional family” member of the tenant of record as statutorily defined for succession purposes. Accordingly she would be required to prove, not just co-residency, but also an emotional and financial commitment and interdependence between herself and her cousin.

However, we faced a risk of going straight to trial because the deposition conducted by the landlord’s prior attorney did not adequately cover this issue, and therefore, did not adequately lock the occupant into a trial position. And, because discovery was over, we could not obtain a follow up deposition or additional documents.

To overcome this deficiency and the risk of surprise at trial, we made a pre-trial motion, which narrowed the issues, forced the tenant to disclose her defenses and locked the tenant into positions that she would be required to stick with at trial.

Using Similarities with the Famous case of Fort Washington Holdings, LLC v. Abbott at Trial

The discovery documents, the deposition testimony and the occupant’s responses to the pre-trial motion revealed that while the occupant had a chance of demonstrating some emotional ties to the tenant of record—which was understandable because they were after all related—she had virtually no financial ties to him.

The team realized that the lack of financial commitment and interdependence was similar to that in the famous case of Fort Washington Holdings, LLC v Abbott, in which Adam Leitman Bailey, P.C., prevailed in a jury-trial. Moreover, while the succession claimant in Abbott lived with his aunt for decades and there was strong evidence of emotional ties, here, the occupant lived with the tenant of record for barely two years, and Adam Leitman Bailey, P.C., believed that it could poke holes in the occupant’s evidence regarding the alleged emotional ties as well.

Trial

The team was ready for trial. At trial the team poked holes in the occupant’s allegations regarding financial ties with the tenant of record by attacking her documents and using aggressive cross-examination to obtain key admissions, including, that the occupant had little knowledge about the tenant of record’s finances.

Realizing that the lack of financial ties alone may not be enough, the team also attacked the occupant’s alleged emotional ties with the tenant of record, by demonstrating that the tenant of record’s alleged close relationship with the occupant’s father is distinguishable with a relationship with her. We also stressed the short period of co-residency, which distinguished this case from prior cases where succession was awarded due to a long history of co-residency.

We also focused on the occupant’s failure to call any objective and independent witnesses on her behalf.

Result

Adam Leitman Bailey, P.C., prevailed after trial. The judge issued a decision denying the occupant’s succession claim and awarded possession of the apartment to our client.

Adam Leitman Bailey, P.C. also utilized several post-trial strategies, which resulted in the occupant dropping an appeal and agreeing to quickly hand over the keys.

Adam Leitman Bailey and Dov Treiman developed the strategy for the landlord. Christopher Halligan represented the landlord at trial. Vladimir Mironenko, the author of this case study, assisted with the trial and drafted the post-trial memorandum.

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Adam Leitman Bailey, P.C.

NEW YORK REAL ESTATE ATTORNEYS