Son's Succession Claim Waived by Tenant's Primary Residence Defense

Landlord sued to evict rent-stabilized tenant for nonprimary residence. Tenant claimed that she did reside primarily in the apartment. Tenant's son also responded, claiming pass-on rights. The court ruled against landlord after a trial, finding that the son was entitled to the apartment as a remaining family member. Landlord appealed and won. Tenant and her son were jointly represented by one attorney. During pretrial questioning, tenant admitted that she hadn't permanently vacated the apartment at any time. Tenant also actively denied nonprimary residence. These actions effectively waived the son's succession defense. The court made a mistake by resurrecting the succession claim at trial, after landlord relied on tenant's statements. And even if the succession claim was properly considered at trial, it wasn't supported by the evidence. While the court found that tenant permanently vacated the apartment in 1989, this would have meant that she left her then 12-year-old son alone in the apartment.

244 West 109th Street LLC v. Diaz: NYLJ, 11/24/09, p. 32, col. 3 (App. T. 1 Dept.; McKeon, PJ, Shulman, Hunter, JJ)