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No succession to senior citizen election.

No succession to senior citizen election

Can a non-senior citizen family member succeed to rights which were personally enjoyed by the former tenant of record by virtue of his senior citizen status? The Civil Court was recently called upon to answer this question and responded in the negative.

In Carol Management Corp. vs. Lucas, Judge Emanuel Haber was confronted with a potential conflict between the General Business Law and the Rent Stabilization Code. The dispute arose when the owner of a cooperative apartment brought a licensee holdover proceeding against the daughter of a deceased rent stabilized tenant. The daughter asserted rent-stabilized succession rights to the apartment by virtue of her familial relationship to the former tenant, coupled with the length of time that the daughter alleged that she had resided in the apartment prior to her father's demise.

Rather than merely examining this case under the succession provisions of the Rent Stabilization Code, the court placed this dispute in the historical context of the cooperative conversion. The building had been converted to a cooperative in 1981, pursuant to an eviction plan. The tenant elected to be treated as an eligible senior citizen pursuant to the General Business Law, and thereby receive personal immunity from the eviction provisions of the conversion plan.

The owner asserted that, not withstanding the tenant's previous rent stabilization protection, his occupancy subsequent to the conversion of the building was due solely to his age and his personal election under General Business Law [subsection] 352-eeee(l)(f). The owner also asserted that the tenant's daughter had not met her burden in establishing succession rights, particularly pointing to the fact that the tenant had not listed his daughter as an occupant in the apartment in his application to the Department of Housing Preservation and Development for a Senior-Citizen's Rent Increase Exemption ("SCRIE").

The tenant's daughter asserted that her father was a rent-stabilized tenant, with all rights granted by the Rent Stabilization Law and Code. The daughter asserted that she was a family member who had occupied the apartment as a primary residence for a period of two years immediately prior to her father's death. Accordingly, the tenant's daughter asserted that the rent stabilization succession provisions granted to her full rights of tenancy.

The Court noted that its focus must be upon the owner's principal argument: "that respondent is precluded from inheriting the apartment by reason of the law governing the conversion of residential rental buildings to cooperatives".

The Court specifically pointed to the post trial memorandum submitted by Belkin Burden Wenig & Goldman's Jeffrey L. Goldman and Daniel Altman which clearly showed that: "according to [subsection] 352-eee(l)(f) of the General Business Law, if an eligible senior citizen, such as respondent's father, elects not to purchase his rent stabilized apartment when his building is converted to a cooperative under an eviction plan, he remains a rent stabilized tenant, as does his spouse. However, no other occupant, regardless of close family relationship is so protected."

The Court therefore awarded a final judgment of possession to the owner, also directing that the licensee pay all arrears in use and occupancy.

In the housing arena, the Rent Stabilization Law and Code is often viewed as paramount and superior to all other laws. In this instance, however, the Court properly found that rent stabilization could be superseded by the General Business Law. Thus, rights which were personally available to a senior citizen tenant could not be succeeded to by a person who was ineligible to claim such rights under the General Business Law.
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Copyright 1991, Gale Group. All rights reserved. Gale Group is a Thomson Corporation Company.

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Title Annotation:Real Estate Review; non-senior citizen family members cannot succeed to rights formerly enjoyed by tenant of record
Author:Belkin, Sherwin
Publication:Real Estate Weekly
Date:Jun 26, 1991
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