235 W. 71 St. LLC v. Chechak – Case Brief Summary (New York)

In 235 W. 71 St. LLC v. Chechak, 4 Misc. 3d 114 [App Term, 1st Dept 2004, per curiam], affd 16 A.D.3d 242 [1st Dept 2005 mem], the primary tenant lived in the apartment for 14 years.

His mother was the tenant of record from 1982 to 1999. The tenant succeeded his mother to the apartment in 1999. After succeeding to the apartment, he relocated to Michigan, but his mother still used the apartment intermittently. The landlord commenced an illegal-sublet proceeding to evict the tenant and his mother.

The Appellate Term, which the Appellate Division affirmed, found that as an immediate family member, the mother was permitted to live in the apartment. Because the mother was the tenant's close family member and because she had close ties to the apartment, the Appellate Term found that the landlord's illegal-sublet proceeding had to be defeated.

The court suggested that the landlord might have prevailed if it had brought a nonprimary-residence proceeding instead of an illegal-sublet proceeding, and the Appellate Division confirmed that sentiment. (See 16 A.D.3d at 242 ["The proper procedure for terminating this tenancy was not initiated."]. )