Succession claim is unsuccessful.

A claimant hoping to establish an entitlement to succeed to a rent regulated tenancy must, in addition to proving the requisite relationship to the tenant (by blood, marriage or financial and emotional inter-dependence), establish the requisite co-occupancy in the apartment with the tenant; generally, two years prior to the permanent vacating from the apartment by the prime tenant.

A recent case demonstrated that a would-be-successor must do far more than merely allege regulatory compliance. Succession to tenancy will be denied in the absence of viable, credible and probative evidence.

In West 49th Street Realty v. Liossatos el al, following the death of the rent controlled prime tenant, the decedent's nephew came forward, asserting that he was in occupancy of the apartment and was entitled to succeed to the rent controlled tenancy. The owner commenced a licensee proceeding. Such a proceeding asserts that, although an occupant may have been given a license to enter into the apartment by the tenant, the license and permitted occupancy has now ended. In this instance the owner asserted that even if the tenant had allowed the nephew to occupy the apartment with him, upon the death of the rent controlled tenant, the nephew's license to occupy automatically ended.

Belkin Burden Wenig & Goldman. LLP partner Jeffrey L. Goldman represented the owner at trial. The testimony that was adduced and the documents introduced into evidence demonstrated that the succession claim was not credible. The nephew asserted that his parents had also lived in the apartment with the tenant at the time the nephew was born and that they all resided together in the apartment until the nephew was six years old and he and his parents moved to Puerto Rico. In addition, the nephew claimed that he briefly lived with his uncle (the tenant) in 1989, while the nephew attended school, and that he actually moved into the apartment to live with his uncle in 1993.

The nephew's father (the former tenant's brother) also testified, attempting to establish his own "tenant" status. He asserted that he lived with his brother in the apartment since 1990. As a result, the nephew moved to dismiss the holdover, claiming, in addition to his own succession defense, that the owner had failed to name his father as a necessary party.

The principal documentary evidence introduced by the deceased tenant's family members was a rent controlled fuel adjustment form from the 1970's, which bore the name of the tenant's brother, and three money orders; one of which had the nephews name written on it, and the other two bearing the nephew's first name initial, followed by the same last name as the prime tenant.

On rebuttal, the owner's attorney demonstrated the lack of credibility to the family members' claims. Among the overwhelming rebuttal evidence was: The utility account remaining in the deceased tenant's name even after his passing; The vast majority of rent payments being made in the tenant's name, even after his death; The absence of any writing or even a claim of oral notice to management by the tenant's brother or nephew as to their alleged occupancy; The brother's admission that, although he claimed that his "address" was his brother's apartment, he actually lived with his children; The absence of any proof that the three money orders which bore reference to the nephew were not sent in envelopes bearing the prime tenant's name.

As a result, Judge Eardefl J. Rashford found that "there is no question that [the nephew] has not occupied the premises the required two years prior to the death of [the prime tenant]." Therefore, as a matter of law, the nephew had no entitlement to succeed to the former rent controlled tenancy. As to the tenant's brother's claim, the Court found that the brother's testimony was not "sufficiently credible to support his position of being a tenant of the premises to sustain this position."

The nephew alternatively asserted that the acceptance of the three money orders either established a landlord-tenant relationship or created a waiver by the owner. The Court found that, in the context of the evidence when viewed in its entirety, this isolated incident was not enough to either create a tenancy or a knowing waiver of rights by the owner. As a result, the owner was granted a final judgment of possession.

A judge once analogized a rent controlled tenancy to a fine jewel: rare, precious and not to be attained cheaply. Towards that end, this case demonstrates that neither a family member's succession claim nor the potential waiver of an owner's rights are to predicated upon anything less than a substantial and credible evidentiary foundation.