Belkin Burden Goldman, LLP (BBG) Secures Unanimous Appellate Term Decision Rejecting Alleged Succession Claim Without a Trial

BBG successfully obtained a unanimous affirmance of a summary determination pursuant to CPLR § 409(b), which granted the landlord a judgment of possession against a tenant’s son who was claiming succession in a non-primary residence holdover proceeding.

Before bringing the holdover proceeding, BBG obtained a private investigation report which established that the tenant had not been primarily residing in the apartment from 2020-2022 and that her son moved into the apartment in 2019. Armed with this information, BBG strategized to obtain an admission from the tenant that she had not primarily resided in the apartment to prove not only the tenant’s non-primary residence, but to also bar the son from obtaining succession. BBG executed this plan by obtaining admissions from the tenant in a three-attorney stipulation, wherein the tenant admitted that she permanently vacated the apartment in June 2022 and did not reside in the apartment as her primary residence from 2020-2022. BBG obtained these admissions after the tenant failed to comply with discovery and by seeking discovery sanctions for her failure to comply. In addition, BBG obtained admissions from the son that he moved into the apartment in October 2019 through a demand for a bill of particulars.

Once these admissions were obtained, BBG obtained a summary determination from the court, without a motion or a trial. The court’s decision was based on a review the pleadings, the son’s responses to the demand for a bill of particulars, and the three-attorney stipulation. The son appealed the decision alleging, among other things, that: (1) a succession defense cannot be decided without a trial; (2) the tenant’s admissions were not dispositive of his succession claim; and (3) the tenant’s absence from the apartment was temporary and caused by COVID-19, conditions in the apartment, and the tenant’s health issues. The Appellate Term rejected the son’s arguments and held that he could not prove co-residency given the admissions.

Notably, in rejecting the son’s alleged succession claim, the Appellate Term stated, “in view of the bill of particulars and stipulated facts, Civil Court properly made a summary determination on the pleadings and papers submitted as if a motion for summary judgment were before it and respondent’s additional submissions did not raise any issue of fact.” This decision sets a new precedent that CPLR § 409(b) relief can be used in non-primary cases and where a succession defense is raised to avoid lengthy trials.

Daniel Phillips, David Skaller, and Magda Cruz handled the litigation and appeal on this matter.

For the complete decision, you can access it here.

If you have any questions or would like to understand how this decision might impact your cases, please do not hesitate to contact us.