Judge Eleanora Ofshtein
Landlord began a summary holdover action against tenant of record Thompson, and the McNichol undertenants, seeking recovery of possession of the apartment. A court previously granted partial summary judgment in landlord’s favor on the non-primary residence claim against Thompson, but restored the matter for trial on the succession rights issues by McNichol. McNichol alleged she resided with her sister, Thompson, since the tenancy’s inception in 1979. Landlord argued the Rent Stabilization Code provision regarding “inception of tenancy” was limited as the statute added qualifying language, thus was only applicable if the occupancy with the tenant of record was for less than two years. The court disagreed citing Appellate Division case law in which the co-occupancy between the tenant of record and the would-be-successor was far longer than two years. The court stated landlord’s interpretation ignored the intended remedial nature of the statute. The court concluded McNichol’s testimony was credible, finding she submitted substantial evidence of her tenancy. Accordingly, it granted the succession defense, and the proceeding against McNichol was dismissed.
