A case summary we’ve discovered indicates that earlier this week, the Appellate Division of the Supreme Court of New York approved 68-74 Thompson Realty’s attempt to take back a rent-stabilized West Village apartment that Keith McNally had lived in since 1993, and had sought to pass on to his son, Harry. Here’s the backstory: According to the court documents you can read below, McNally vacated the apartment in 2002 in order to move into a West Village townhouse he had purchased two years prior. He turned it over to his then-17-year-old son Harry, who went to college the next year and returned in 2005. That year, 68-74 Thompson Realty got permission from the New York Civil Court to take the apartment back from the elder McNally on the basis that it was no longer his primary residence.
In 2008, however, the New York Supreme Court, Appellate Division ruled that although a 1994 divorce settlement had established McNally’s ex-wife Lynn Wagenkneckt’s West Village townhouse as their son’s primary residence, Harry had “spent at least four or five nights a week and often more” at McNally’s old apartment during the time that his father lived there (the settlement gave McNally joint custody), and Harry was therefore entitled to take it over. On Tuesday, however, that decision was reversed.
The burden of presenting legally sufficient proof to establish primary residency rests with the party claiming succession rights (see Gottlieb v Licursi, 191 AD2d 256 ). "Primary residence" is judicially construed as "an ongoing, substantial, physical nexus with the ... premises for actual living purposes" (Katz Park Ave. Corp. v Jagger, 11 NY3d 314, 317 , quoting Emay Props. Corp. v Norton, 136 Misc 2d 127, 129 [App Term 1987]). Upon our review of the documentary and other evidence, we find, contrary to the view of the Appellate Term, that Harry failed to meet his burden of proof that his father's former residence was his primary residence at all relevant times.
It’s uncertain whether McNally plans to appeal the decision, assuming he can. We’ve contacted his lawyer for comment.
68-74 Thompson Realty, LLC v. McNally, No. 570599/06 (N.Y.App.Div. 05/12/2008) [PDF]
68-74 Thompson Realty, LLC v. McNally, No. 1952 (N.Y.App.Div. 03/02/2010) [PDF]
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