Claude and Daphne Horsford sought to recover a rent-stabilized unit for use by their 24-year old daughter. After a nonjury (bench) trial before a Judge of the Housing Part of the New York County Civil Court, the Horsfords were awarded the apartment based on the court's conclusion that the owners "genuinely intended" to recover the subject premises for their daughter's use.
The Appellate Term affirmed the Housing Part's judgment finding, in part, that the owners did not lack "good faith" solely because there was another available apartment in the building. And, according to that appellate court, the fact that the evidence adduced at trial deviated from the allegations that were contained in the owners' predicate notice was not fatal to the case. As the Appellate Term noted:
Absolute synchronicity between the trial evidence and the allegations set out in a predicate notice is not required.On further appeal, the Appellate Division, First Department, was not persuaded that the proceeding's outcome was erroneous.
The tenant argued at the AD that the owners had failed to prove their case because the intended occupant (the daughter) did not testify at trial. Although two dissenters (Associate Justices Tom and Andrias) believed that, without the daughter's testimony, any evidence as to the contemplated use comprised "mere speculation," the majority correctly rejected that view.
We are advised that the tenant is pursuing an appeal to the state's highest court. If the law is consistently applied, our guess is that outcome should result in a "trifecta" -- yet another affirmance -- for the landlord. We do not believe there is any reason to impose additional procedural hurdles and hoops particularly when an owner's testimony has been found to be credible and the governing standards -- of "good faith" and "genuine intention" to recapture a stabilized apartment for a family member's use as a primary residence -- have been satisfied.
We can imagine instances when imposing the requirement of additional (cumulative) testimony by the intended occupant -- like a minor or unborn child -- would present undue hardship or effectively negate an owner's ability to commence an owner's-use case. Who would be willing to subject their children to a grueling pre-trial deposition and/or stressful cross-examination at a hearing or trial? Who would speak for the unborn?
We shudder to think of the abuses that await litigants should the Court of Appeals craft new evidentiary standards for these kind of cases and believe the court may want to leave well enough alone.
For a copy of the Appellate Division's decision in Horsford v. Bacott, please click on the following link:
http://www.nycourts.gov/reporter/3dseries/2006/2006_06260.htm
For a copy of the Appellate Term's decision, please click on the following link:
http://www.nycourts.gov/reporter/3dseries/2004/2004_51399.htm