Subtenant Claims Illusory Tenancy

Landlord sued to evict rent-stabilized tenants for illegal subletting. Tenants appeared in court and agreed to move out. A subtenant also appeared and agreed to move out. The case was discontinued as against "John Doe." Later, another occupant stepped forward and asked the court to vacate the judgment and warrant and let him join in the case. He claimed illusory tenancy, and said that he had lived in the apartment since 2003 and that both landlord and prior landlord had accepted rent from him. He wanted the chance to put in an answer. The court ruled against the occupant. He appealed, and the appeals court reopened the case. The occupant was at least entitled to raise his claim by putting in an answer to landlord's petition. One judge disagreed, pointing out that the occupant was married to the subtenant who had agreed to move out. He had a prior opportunity to appear and chose not to. Also, he stated in court that he lived together with tenants for three years until they moved out in 2006. Since he admitted that tenants actually lived in the apartment, he couldn't claim illusory tenancy.

Linden Lefferts LLC v. Cox: 2011 NY Slip Op 21093, 2011 WL 903049 (App. T. 2 Dept.; 3/14/11; Golia, JP [dissenting], Pesce, Steinhardt, JJ)