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Adam Leitman Bailey, P.C., Takes Over Rent-Control Succession Case Mid-Trial; Obtains Judgment of Possession for Landlord

By Christopher Halligan


 In New York, through a doctrine called succession, a rent-controlled apartment can be passed down from generation to generation or to certain family members, if, with certain exceptions, (i) the tenant of record and succession claimant share a sufficient level of consanguinity and (ii) the tenant of record and succession claimant live in the apartment together for at least two years immediately before the tenant of record’s death or permanent vacatur from the apartment.

Each succession can result in an apartment remaining rent-controlled for years and even decades. Apartment occupants often go through great lengths to allege entitlement to succession; vigilant landlords and their attorneys can root out false claims and challenge them in Court.

When a succession case starts, landlords often have the ability to conduct discovery to ascertain the validity and strength of the succession claim and to anticipate positions that the claimant will take at trial.

A landlord recently called upon Adam Leitman Bailey, P.C., to take over a succession case mid-trial, with no discovery conducted by the landlord’s prior attorney. The trial team faced an uphill battle.

The rent-controlled apartment had been in the claimant’s family for decades and the claimant’s mother herself had succeeded to the apartment through a different family member.

The case began as a non-primary residence case against the mother, when the landlord realized that the mother had not been living in the apartment. First, the mother appeared in the case without an attorney, challenged the case and swore that she was living in the apartment. She had been paying the rent, kept all of her financial and personal documents at the apartment and even submitted sworn statements to Court claiming that she still lived in the apartment. When it came to light that she had obtained and moved to apartment in another borough five years prior, the mother hired and attorney. The story changed. The mother conceded that she had moved out five years earlier, but now claimed that her adult son was entitled to succeed to the apartment because he had lived with her for two years before she moved out.

In summary judgment motions before the trial, the landlord argued that the son was barred from claiming succession because the tenant of record perpetrated a fraud and did not permanently vacate the apartment for five years after she physically moved out because she continued to conceal her physical vacatur. In opposition, the mother argued that, despite being on the tenant’s association for over fifteen years, she was afraid of the landlord and continued to represent herself as the tenant because she was afraid that her son would not be able to protect his own rights against the landlord. The Court found that there were questions of fact to be resolved at trial.

At trial, the mother, the son, and the son’s girlfriend all testified that the son and his mother lived in the apartment together for at least two years prior to the mother’s move. In fact, the mother and son testified that the son had not lived anywhere other than the apartment his entire life.

The team at Adam Leitman Bailey, P.C., had to dig deeper. First the team attacked inconsistencies between the witnesses’ testimony and obtained concessions and admissions that showed holes in the claimant’s story. Next, the team poured over the documentary evidence that was subpoenaed and obtained for the trial to find concrete proof that the claimant and his mother were not being honest.

The answer partly came in the claimant’s criminal probation report. Adam Leitman Bailey, P.C., uncovered that the claimant was in fact residing upstate with his girlfriend where the couple had two kids, that he was an admitted gang member, that he received probation for an alleged domestic issue which occurred upstate, and that during the relevant time period when probation officers would visit him at the subject apartment he would often times not be there. The documents also revealed that, during the relevant time period of required co-residency with his mother in New York, the claimant actually worked at a hotel upstate mere minutes away from his girlfriend’s residence and hours away from the subject apartment in New York City.

At the conclusion of the trial, the team at Adam Leitman Bailey, P.C., made several alternative arguments to demonstrate that the Court should find in the landlord’s favor.

We first argued that the claimant was automatically barred from succession due to his and his mother’s affirmative and systematic concealment and misrepresentation of the mother’s vacatur from the apartment for at least five years. Next, we argued that the claimant’s “excuse” for such concealment and misrepresentation had no basis in law and was not proven factually. We also argued that, the date of the mother’s permanent vacatur should be set as 2013 (the date that she officially surrendered possession of the apartment) not as 2008, when she physically vacated. We argued that, if the date is set as 2013, then the claimant could not be entitled to succession because the mother had not lived there since 2008 and there could be no co-residency.

In the alternative, we argued that, even if the test date is set as 2008, the claimant is still not entitled to succeed to the apartment because he failed to meet his burden of proof to prove the required two-year co-residency with his mother prior to that time. We relied on inconsistencies in the testimony and the probation reports and other documentary evidence obtained during the trial, which placed the claimant upstate, not at the apartment. We argued that the documents that did link the claimant to the apartment were of little value because they were prepared by his mother, who admitted to lying on her own financial and personal documents and in court submissions. We further pointed out that the claimant’s case was based entirely upon uncorroborated self-serving biased witness testimony and that the claimant did not produce a single disinterested witness to corroborate his and his mother’s stories.

The Court ruled in favor of the landlord, denied the succession claim and awarded judgment of possession of the subject apartment to the landlord.

Christopher HalliganVladimir Mironenko and Jamie Schare Friedland of Adam Leitman Bailey, P.C., represented the landlord.

Adam Leitman Bailey, P.C.

NEW YORK REAL ESTATE ATTORNEYS