Parties Tried to Create Illusory Tenancy

Facts: Landlord sued to evict tenants and their adult daughter. Tenants, an elderly couple, lived in California. Tenants' daughter, an attorney who had worked for landlord, moved into the apartment in 1990. Her parents had never lived there. She prepared a lease naming her parents in California as tenants. The lease stated that the apartment was exempt from rent stabilization because tenants were nonprimary residents. The lease also stated that any person who occupied the apartment couldn't use it as their primary residence and that tenants had no right to renew the lease. Tenant's daughter also brought a declaratory judgment action in court to exempt the apartment from rent stabilization. In 1992 the court signed a consent judgment destabilizing the apartment because the ''named tenants wouldn't be occupying the apartment as their primary residence.'' Landlord later sued tenants and their daughter. Landlord claimed the daughter breached her professional duty to landlord by improperly creating the lease, getting it signed and getting the court judgment. Landlord now asked the court to revoke the lease and eject tenant and their daughter. Landlord also sought back rent. The court ruled against landlord and dismissed the case, based on the prior court ruling. Landlord appealed. Court: Landlord loses. Landlord and tenants' daughter seemed together to have tried to create an illusory tenancy to evade the rent-stabilization law. This was reason enough to dismiss landlord's case. The prior court ruling also bars landlord from proceeding here. But landlord could try to vacate the prior declaratory judgment in a new proceeding.

390 West End Ave. Associates. v. Youngstein: NYLJ, p. 26, col. 5 (12/4/95) (App. Div. 1 Dept.; Sullivan, JP, Wallach, Rubin, Ross, Nardelli, JJ)