Tenant's Brother Gets Rent-Controlled Apartment

After the housing court dismissed an eviction proceeding against tenant and her brother on procedural grounds, rent-controlled tenant's brother applied to the DHCR for succession rights to tenant's apartment after tenant moved to Florida. He claimed that he had lived together with tenant in the apartment since 1972. The DHCR ruled for tenant's brother, and landlord then filed an Article 78 court appeal.

The court and appeals court ruled against landlord. The DHCR relied on a sworn statement from tenant that she moved to Florida in December 2005 due to health concerns for her daughter and that landlord's staff was aware that she moved out. Landlord pointed out that tenant continued to pay the rent through 2009. Landlord also argued that, in a second eviction proceeding it started against tenant and her brother, tenant made different claims about continued residency in the apartment than she made before the DHCR. The DHCR was aware of these inconsistencies. The court disregarded those statements, finding that the eviction proceeding didn't result in a court ruling on the merits, and therefore no judicial estoppel applied. The DHCR reasonably relied on tenant's sworn statement and disregarded any contrary statements tenant made in court. Also, landlord didn't contest that the brother was tenant's family member or that he had lived in the apartment since 1972. 

Underhill-Washington Equities, LLC v. DHCR: 2018 NY Slip Op 00155, 2018 WL 343733 (App. Div. 2 Dept.; 1/10/18; Rivera, JP, Hall, Miller, Duffy, JJ)