Illegal Subtenant Gets Apartment Lease Due to Illusory Tenancy

Facts: Tenant moved into rent-stabilized apartment in 1973. In 1997, tenant sublet the apartment without informing landlord or getting landlord's permission. While subtenant lived in the building, she hired the super to paint and repair the floor. The doormen say they addressed her by her first name, accepted deliveries for her, and held her apartment key when she was away. Other building staff helped her move in and helped her son move out when he went to college. In 2003, landlord brought an illegal sublet proceeding against tenant. Both tenant and subtenant appeared in court. That case was withdrawn "without prejudice," and subtenant paid five months' rent arrears directly to landlord when the case was settled. In 2004, tenant didn't renew his lease and landlord sued to evict subtenant as a licensee. Subtenant claimed that she was entitled to remain because of illusory tenancy.

Court: Landlord loses. Landlord's acceptance of the rent check from subtenant didn't create tenancy rights for subtenant. But tenant rented the apartment to subtenant, and prior subtenants, for profit while tenant moved into a co-op apartment he bought in 1990. Although landlord didn't conspire with tenant in the unauthorized subletting, landlord knew, or should have known through its building employees, that subtenant was living in the apartment for a long time before taking any action.

333 East 49th Partners LP v. Siebert: NYLJ, 8/8/07, p. 29, col. 1 (Civ. Ct. NY; Cohen, J)