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http://nycourts.law.com/CourtDocumentViewer.asp?view=Document&docID=46118 Judge Lai ALLEGING ILLEGAL sublet, petitioner landlord sought to evict the daughter and grandson of an elderly rent-controlled tenant serving a 46-month prison sentence. While obtaining a divorce, the daughter assumed part-time occupancy prior to tenant’s incarceration. She and her son occupied the apartment during tenant’s imprisonment. The court denied eviction, holding that the apartment’s occupancy by the tenant’s daughter and grandson during his temporary incarceration was not an illegal sublet. It noted appellate decisions holding that a close family member’s occupancy of an apartment during the absence of its tenant of record is not an illegal sublet. Noting that a nonprimary residence claim is the proper theory on which to proceed where a close family member occupies an apartment in a tenant’s absence, the court observed that had the subject tenant’s relocation been permanent, his daughter and grandson would have held the burden of proving their right to continued occupancy of the apartment.

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