Learn About the Law
Get help with your legal needs
FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
BERWICK LAND CORPORATION, Petitioner-Landlord-Respondent, v. Dr. Louis MUCELLI, etc., Respondent-Tenant-Appellant, “John Doe”, et al., Respondents-Undertenants.
Order of the Appellate Term of the Supreme Court, First Department, entered November 8, 1996, which reversed an order of the Civil Court, New York County (Arlene Hahn, J.), entered May 29, 1995, dismissing the within holdover petition after a nonjury trial, and granted the petition, and awarded petitioner landlord a judgment of possession, unanimously affirmed, with costs.
In this summary holdover proceeding to recover possession of a rent stabilized apartment on the ground that it had not been occupied as a primary residence, Appellate Term in evaluating “the entire history of the tenancy to the time of renewal” (615 Company v. Mikeska, 75 N.Y.2d 987, 988, 557 N.Y.S.2d 262, 556 N.E.2d 1069), took appropriate note of the circumstance that, despite residing in the subject premises for three or four months prior to service of the termination notice, respondent tenant had not resided in the apartment at all between 1974 and September 1993 and, in particular, had not resided there for the first 16 months of the most recent 24 month renewal period (170 Misc.2d 784, 785, 656 N.Y.S.2d 88). Accordingly, Appellate Term properly found respondent tenant's occupancy of the subject apartment did not constitute the type of “ongoing, substantial, physical nexus with the controlled premises for actual living purposes” (Emay Props. Corp. v. Norton, 136 Misc.2d 127, 129, 519 N.Y.S.2d 90, as cited in Sommer v. Ann Turkel, Inc., 137 Misc.2d 7, 10, 522 N.Y.S.2d 765, lv. denied 139 Misc.2d 892, 530 N.Y.S.2d 946) that would justify affording the tenancy continued protection under the rent stabilization laws. Nor could the occupancy of respondent-tenant's family members, in his absence, be imputed to him since succession rights cannot be transferred from one family member to another where there has been no contemporaneous occupancy (see, Rent Stabilization Code [9 NYCRR] § 2523.5).
We have considered tenant's remaining arguments and find them to be without merit.
MEMORANDUM DECISION.
A free source of state and federal court opinions, state laws, and the United States Code. For more information about the legal concepts addressed by these cases and statutes visit FindLaw's Learn About the Law.
Decided: April 02, 1998
Court: Supreme Court, Appellate Division, First Department, New York.
Search our directory by legal issue
Enter information in one or both fields (Required)
Harness the power of our directory with your own profile. Select the button below to sign up.
Learn more about FindLaw’s newsletters, including our terms of use and privacy policy.
Get help with your legal needs
FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
Search our directory by legal issue
Enter information in one or both fields (Required)