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Suspect succession claim held unsuccessful.

A unanimous reversal by the Appellate Term, First Department, has reemphasized the heightened burden of proof that a family member claiming rent regulated succession rights will be required to bear.

In reversing the Civil Court and awarding a final judgment of possession in favor of the owner, the appellate tribunal described the burden on the claiming family member as an "affirmative obligation".

In Kimmel vs. Estate of Gillon the owner and proprietary lessee of an apartment formerly occupied by a non-purchasing, rent-stabilized tenant brought a holdover when it was observed that the apartment was occupied by a person other than the tenant of record.

The occupant, the daughter of the deceased prime tenant, asserted an entitlement to remain in possession of the apartment under the succession provisions of the New York City Rent Stabilization Code.

Following a lengthy trial, the Civil Court found in favor of the claiming family member and dismissed the owner's petition. The lower court found that the tenant's daughter had, indeed, adequately established her succession claim. The owner appealed, represented by Belkin Burden Wenig & Goldman; the appeal being handled by Magda L. Cruz and I.

The Appellate Term stated that the tenant's daughter required:

"To establish that she resided in the apartment with her mother as a primary resident for at least two years immediately prior to the death of her mother."

The court carefully analyzed the evidence of record during the relevant two-year time frame. The appellate court found, with regard to the two-year test period, that the tenant's daughter had share a Long Island residence and was employed "at a minimum wage in a [Long Island] restaurant, a long commute from her Manhattan address". The court also remarked that the daughter's income tax returns revealed only a modest annual income, yet:

"Nevertheless she claims that she commuted by railroad on a regular basis and worked six days a week during the period at issue. Accepting respondent's testimony would mean that she would have expended approximately one-half her salary for transportation since she generally took a taxi from the Long Island Railroad station.

Clearly, the appellate court found the daughter's testimony to defy credibility. The court also found significant holes punched in the daughter's story by virtue of the daughter's payment of Long Island telephone and heating bills; maintenance of a Long Island checking account with personalized checks bearing a Long Island address; purchase of personal goods and services on Long Island; and storage of personal belongings at the Long Island residence.

The court was apparently impressed by the appearance of the owner of the Long Island residence ("a disinterested witness"), whose testimony the court specifically noted "undermined" the daughter's "assertion that she occupied the Old Brookville premises for convenience only".

Finally, the court observed that although the daughter had filed New York City resident income tax returns during the relevant period, these returns showed that the daughter had paid no local income taxes or tax withholding for those years and, further, that the tax returns recited the daughter's address "in care of" her mother in Manhattan.

After reviewing all of the documentary evidence submitted and testimony adduced, as memorialized in the Record on Appeal, the Appellate Term unanimously reversed predicated upon the daughter having failed to "satisfy her 'affirmative obligation' to be named as a successor tenant on a renewal lease (Rent Stabilization Code [section] 2523.5[e])." As a result, the Petition was reinstated and the landlord awarded a final judgment of possession.

The Appellate Term's decision demonstrates the importance of a court allocating the proper burdens of proof upon the respective parties. In this case. the owner's burden was minimal; that is, to demonstrate that the apartment was occupied by a person other than the tenant. The claim of succession rights by the occupying family member was an affirmative defense which does not cast a burden upon the owner to disprove. To the contrary, such a defense casts the "affirmative obligation" upon the party relying thereon. A succession claim which is not supported by the preponderance of the evidence adduced at trial cannot be sustained.
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Title Annotation:appellate court reverses decision placing burden of proof for rent regulated succession rights on family member
Author:Belkin, Sherwin
Publication:Real Estate Weekly
Date:Jul 22, 1992
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