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Superintendents are usually permitted to occupy apartments in the buildings where they work as an "incident of employment."  By that we mean, in exchange for providing services to the building, these employees are provided rent-free or reduced-cost accommodations. However, without some contractual or regulatory protections in place, when that employment terminates, a super's right to remain in the assigned residential space will also come to an end.

Selman Nezaj had lived in various apartments in a Bronx building before being hired as superintendent.  For some sixteen years he continued in that capacity and occupied unit 5E, rent-free. Upon his employment's termination, in April of 2004, Mr. Nezaj refused to leave his apartment, claiming a right to remain as a regulated tenant.

While some reported cases provide that a regulated tenant maintains his/her status even when employment as a building superintendent is later accepted -- that was not the outcome Mr. Nezaj received in his case.  Although he had initially resided in his father's fourth-floor unit and later lived in a fourth floor apartment with his wife (all prior to becoming a super), neither the Bronx County Civil Court nor the Appellate Term, First Department, was persuaded that Nezaj retained any independent tenancy rights.

A lone dissenter, William P. McCooe, expressed his disagreement with his colleagues in a pithy memorandum decision which reads, in substantial part, as follows:

A rent-stabilized tenant who moves to another apartment in the same building to become the superintendent reverts to rent-stabilized status when his employment is terminated for the reasons stated in my dissenting opinion in Mohr v Gomez (173 Misc 2d 553 [App Term, 1st Dept 1997, McCooe, J., dissenting]). The fact that the lease was in his wife's name is of no consequence since they were living together hereby acquiring successor rights.

We think your dissent is super, Justice McCooe, and couldn't agree with you more.

For a copy of the Appellate Term's decision in Genc Realty LLC v. Nezaj, please click on the following link: http://www.nycourts.gov/reporter/3dseries/2006/2006_26462.htm