159 A.D.3d 41
N.Y. App. Div.2018Background
- Tenant Scherley rented a rent-stabilized Brooklyn apartment in 2003; her mother Marie lived there as an occupant from the start.
- Scherley moved to Virginia in 2008 but continued paying rent and signed a renewal lease in September 2009 for a term through December 31, 2011; Marie continued to live in the apartment.
- Landlord (Georgetown) served a nonrenewal notice in 2011 claiming Scherley had not resided in the unit, and Marie filed a DHCR complaint asserting succession rights as a family member/senior.
- A Rent Administrator found Marie entitled to succession; the DHCR Deputy Commissioner initially remitted for factfinding, later affirmed, then revoked that finding in 2014 relying on First Dept. precedent (Third Lenox Terrace) that treated continued rent/renewals as extending the vacancy date.
- Marie brought a CPLR 7803 proceeding; Supreme Court annulled the DHCR revocation and reinstated the Rent Administrator’s finding that Marie had succession rights.
- Appellate Division (Second Dept.) affirmed, holding the date of “permanent vacating” is when the tenant actually ceased residing in the unit (2008), not when rent/renewals ceased.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a family member loses succession rights when the named tenant, after permanently leaving, continues paying rent and executes renewal leases | Marie: Succession measuring period ends when tenant actually permanently ceases residing in unit; she lived with tenant long enough before that date to qualify | Georgetown: Tenant did not “permanently vacate” until lease term ended (Dec 31, 2011) because tenant continued paying rent and signed renewals, so Marie did not reside with tenant in the relevant year | Court held the relevant date is when tenant actually ceased residing in the unit; payments/renewals do not extend the period — Marie entitled to succession |
Key Cases Cited
- Ansonia Residents Assn. v. New York State Div. of Hous. & Cmty. Renewal, 75 N.Y.2d 206 (N.Y. 1990) (context and purpose of Rent Stabilization Law)
- Rent Stabilization Assn. of N.Y. City v. Higgins, 83 N.Y.2d 156 (N.Y. 1993) (agency role and remedial purpose of succession regulations)
- Matter of Murphy v. New York State Div. of Hous. & Cmty. Renewal, 21 N.Y.3d 649 (N.Y. 2013) (succession rules protect long-term residents from displacement)
- Third Lenox Terrace Assoc. v. Edwards, 91 A.D.3d 532 (1st Dep’t 2012) (treated continued rent/renewals as controlling date for permanent vacatur)
- Festa v. Leshen, 145 A.D.2d 49 (1st Dep’t 1988) (DHCR historically supported succession claims where tenant executed renewals after moving out)