Succession story successfully stopped.

Once again. the Appellate Term, First Judicial Department, has unanimously reversed a Civil Court determination, which had found a family member's claim of succession to tenancy to be valid. In what has become a growing trend, the Appellate Term continues to cast a jaundiced eye upon family member succession claims which are highly suspect, dubious, incredible or simply contrary to the evidence adduced during the trial.

In Lincoln Terrace Associates vs. Sorrentino, the daughter (and executrix) of a deceased rent-stabilized tenant asserted succession rights to the decedent's West Side apartment. At trial, the Civil Court had upheld the succession claim by the former tenant's daughter. On appeal, the Appellate Term unanimously reversed.

The Appellate Term emphasized that the landlord, represented by Belkin Burden Wenig & Goldman, had:

Established by the clear weight of the documentary and testimonial evidence that respondent-executrix, daughter of the deceased rent stabilized tenant, did not maintain the subject West 66th Street apartment premises as her primary residence immediately prior to the death of her mother (Rent Stabilization Code .5[b][1]).

At the trial, the owner was represented by my associate, David M. Skaller. On appeal, the Appellate Term, unanimously reversed after focusing upon and carefully analyzing the testimony adduced and documents submitted during the trial. My partner, Magda L. Cruz, urged the appellate court to closely scrutinize those documents voluntarily prepared by both the tenant and her family during the crucial period prior to the tenant's death, when it was not anticipated when a succession claim would be in the offering. Those documents stood in stark contrast to the daughter's allegation of co-occupancy which developed at the trial.

The Appellate Term noted that approximately one year prior to the tenant's death the daughter, as attorney-in-fact on behalf of her mother, prepared and submitted a statement of occupancy to the owner warranting that no individuals other than the mother occupied the subject apartment. In addition, a number of documents admitted at trial -- including the daughter's 1990 W-2 form, application for health benefits, payroll deduction authorization and motor vehicle registration plate record -- identified the daughter's residence at an address in Queens. The court emphasized that it was not until April 1991, a date subsequent to the mother's death in February 1991, that the daughter first advised her employer of an address change to West 66th Street. In addition, the Appellate Term noted that the daughter had conceded at trial at she had absolutely no personal identification listing the Manhattan premises as her home address.

Based upon this record, the Appellate Term found that the family member had not demonstrated that she was entitled to be named as a tenant in her own right on a renewal lease. The court noted that to the extent the daughter had moved into the apartment subsequent to her mother's death without the owner's approval, her occupancy was unauthorized. The Appellate Term noted the limited capacity in which an executrix may act and enter a decedent's former home. The court stated:

An executrix who did not occupy an apartment with a family member prior to the latter's death may not subsequently enter into possession in her individual capacity for living purposes absent the landlord's consent.

Once again, the Appellate Term has emphasized two crucial principles concerning a family member's claim of rent regulated succession rights. First, a succession claim is an affirmative defense, which places the burden of proof upon the claimant to establish the defense, not upon the owner to disprove. Second, mere claims of cooccupancy which are not borne out by (or, in this case, are actually contrary to) the demonstrable and empirical evidence obtained during the trial will not constitute an adequate evidentiary foundation upon which a meritorious succession claim may rest.