Succession claim fails absent proof.

In IDF Limited Partnership vs. Leahy. et al., the Appellate Term, First Judicial Department, issued a unanimous reversal of a prior Civil Court order and awarded a final judgment of possession to the owner. More specifically, the Appellate Term, in reversing, struck down a succession claim made by the grandson of a deceased rent controlled tenant.

Following the death of the rent-controlled tenant, the landlord had instituted a licensee holdover proceeding seeking to recover the four-bedroom, rent controlled-apartment. The grandson of the former rent-controlled tenant asserted that he qualified as a successor to the rent control rights.

Because the case seemed so clear cut, the owner, represented by my partner, Jeffrey L. Goldman, of Belkin Burden Wenig & Goldman, elected not to proceed to trial, but to seek summary judgment based upon the absence of any cognizable triable issue of fact. In support of its motion, the owner presented relevant portions of the deposition testimony of former co-occupants of the apartment, each of whom stated under oath that the tenant's grandson did not enter into occupancy of the apartment until approximately two weeks before his grandmother's death; a time when the grandmother was already in the hospital.

Parenthetically, these former occupants ultimately relinquished any claim to succession rights.

In addition, the owner submitted an affidavit made by the grandson himself (in support of the grandson's motion to intervene in the proceeding) wherein the grandson admitted that he had neither relinquished his own apartment residence nor moved into the grandmother's apartment "on a permanent and full-time basis" until approximately one month prior to the tenant's demise.

In opposing summary judgment the grandson attempted to explain away his previous glaring admission by suddenly claiming "confusion". In addition, the grandson relied upon an alleged agreement or understanding that he had reached with his grandmother that the grandson "would consider the apartment to be [his] primary residence."

The Civil Court denied the owner's motion for summary judgment finding that the grandson's excuses had raised triable issues of fact. In addition, on appeal, the grandson asserted that he was not obliged to meet the present succession requirements [two years of co-occupancy as a primary residence with the tenant prior to the tenant's permanent vacating]. Rather, the grandson asserted that the previous, albeit repealed, standard for succession to a rent-controlled apartment should apply to his claim [that is, that the grandson was merely "living with" his grandmother prior to her demise].

On appeal, my associate, Magda L. Cruz, and I asserted that the grandson bore the burden of proof of establishing an affirmative defense based upon a succession claim. Therefore, we posited that such conflicting and highly suspect allegations by the grandson could not serve to raise a triable issue of fact and, therefore, defeat our motion for summary judgment.

The Appellate Term unanimously agreed, reversed and awarded a final judgment of possession to the owner. The Appellate Term noted that the affidavits of the former occupants clearly rebutted the grandson's specious allegations. The appellate court found the grandson's prior admission in his intervention affidavit to be "compelling". The court found the grandson's failure to relinquish his own apartment during a time that he claimed primary residence with his grandmother to be a critical acknowledgement. Further, the court questioned the "probative worth" that any claimed "agreement" with the grandmother could have in this proceeding. The court found: "unpersuasive respondent's strained attempts in opposing summary judgment to explain away what he now describes as 'some confusion' in his...affidavit and to distance himself from the judicial admissions contained therein."

Ultimately, the court found that the grandson's contentions were "hardly enough" to raise any triable issue of fact. The court found that the tenant's succession claim lacked for any "objective, competent proof".

Finally, the court found that whether it based its analysis in the two-year co-occupancy requirement or on the more amorphous "living with" standard set forth in the former version of the succession regulations, the grandson's "vague and conclusory allegations" neither established a permanent residence in the subject apartment nor were sufficient to defeat the landlord's entitlement to an accelerated judgment on its petition.

Once again, the Appellate Term has reiterated the heavy burden placed upon a family member claiming succession rights; that is, vague, unsupported, conflicting or conclusory allegations merely averring co-occupancy, but lacking probative evidence, will be found to be insufficient to sustain the family member's succession claim.