In Tagert v. 211 E. 70th St. Co. (63 NY2d 818, 472 NE2d 22, 482 NYS2d 246 [1984]), the tenant of record sought written permission from the landlord to either sublet the subject apartment to his son and his son's family for a period of time that he expected to be absent, or to allow them to occupy as immediate family members.

The trial court held that the tenant's son was entitled to occupy as both a subtenant and an immediate family member and the Appellate Division affirmed.

The Court of Appeals modified noting that, prior to the Appellate Division's decision, the legislature modified section 226-b of the Real Property Law and the Administrative Code of the City of New York to require that a tenant seeking to sublet his apartment "establish that at all times he has maintained the unit as his primary residence and intends to occupy it as such at the expiration of the sublease." (Tagert at 820.)

The Court of Appeals further noted that the tenant's application was not entitled to any greater rights under Administrative Code § YY51-6.0 (c) (4), which provided that the immediate family members of a tenant may occupy the apartment, as such provision required concurrent occupancy by the tenant and the immediate family members.

This requirement and the identical language relied upon the Court of Appeals in Tagert is contained in Rent Stabilization Code § 2525.6 (a).

The Court held

"thus, while the lease provision may permit a tenant's family to occupy an apartment with him, and allow those family members who actually live with him to continue in residence for the remainder of the lease term in his absence, the lease provision does not permit family members to succeed to possession by moving into an apartment upon the tenant's departure . . . ." (Id. at 822 .)

Tagert must stand for the proposition that the primary residence of a tenant is a relevant issue in determining whether occupancy by immediate family members constitutes subletting or not.