New York Court Rules for Former Domestic Partner in Tenant Succession Case; Implies Retroactive Application of Obergefell v. Hodges


Justice Maria Milin of New York County Supreme Court ruled against a landlord who was seeking to evict the former domestic partner of a tenant from a rent stabilized apartment in Manhattan . The ruling, 360-363 Associates v. Hyers, NYLJ 1202737856287 (September 14, 2015), was published by the New York Law Journal on September 23. The decision may be among the earliest retroactive applications of the U.S. Supreme Court’s recent marriage equality ruling, Obergefell v. Hodges, 135 S. Ct. 2584 (2015).

Kemper Hyers took possession of the apartment on East 51st Street in June 1983. He met Michael Pederson in 1988 and about a year later Pederson moved in with him. They had a lengthy loving relationship, living together as partners in the apartment for about twenty years. They tried to get married in 1993, but the clerk refused to give them a license due to New York’s ban on same-sex marriages. When the opportunity arose, they registered as domestic partners. During 2000, Pederson approached the landlord about adding him to the lease based on their domestic partnership but was rebuffed. In August 2009, their relationship came to an end under “challenging circumstances.” Hyers fell in love with somebody else and moved out, leaving Pederson in sole possession of the apartment. The court’s decision does not indicate whether the landlord was aware of this change in circumstances at that time. It seems that Hyers’ new boyfriend had kids and the 51st Street apartment would not be sufficient for this expanded family. However, there was a period of uncertainty about housing, as a result of which Hyers moved back into the apartment in December 2009, not leaving until December 2011. When he returned Pederson moved out to avoid “discord.” During this new period of residence, Hyers executed a renewal lease. When Hyers moved out again, Pederson moved back in. Then the landlord sought to evict Pederson, claiming he was not the named tenant and was not entitled to remain in possession as a successor.

Under the rent stabilization regulations, when a named tenant dies or permanently vacates an apartment, members of the tenant’s family who have been co-occupying the apartment for the two-year period immediately preceding that event may succeed to the rent-stabilized tenancy. The landlord argued that Hyers permanently vacated the apartment in December 2011, at which time Pederson had not been in residence for the previous two years, since he moved out in December 2009 when Hyers had “temporarily” moved back in.

“This contention is without merit,” wrote Justice Milin. “First, Mr. Hyers did not vacate the Apartment permanently in December 2011. He vacated permanently in August 2009 after his domestic partnership with Mr. Pederson broke up, he became romantically involved with someone else and he left to pursue a committed relationship with that person. As a result of the separation Mr. Hyers moved out of the Apartment with the goal of finding a new, permanent living situation appropriate to accommodate his new partner who has children.” The judge rejected the contention that Hyers’ signature on the renewal lease compelled a finding that he was in possession of the apartment when he signed it. Hyers had testified that at the time he signed the lease, “his intentions regarding the Apartment were uncertain, but, utilizing the Apartment as a permanent home was never a realistic option” because of the size of his new family. According to Justice Milin, “Hyers’s return to the apartment in December 2009 was only a temporary accommodation, for a limited duration.” That means, she concluded, that Pederson’s “succession rights vested after the definitive departure of Mr. Hyers in August 2009,” after the men had been in continuous co-occupancy for twenty years.

Furthermore, she wrote, the New York Legislature didn’t authorize same-sex marriages in the state until 2011 and “then in June 2015, the Supreme Court of the United States held that it was a violation of the Due Process and the Equal Protection Clauses of the 14th Amendment to deny same sex couples the right to marry. Mr. Hyers and Mr. Pederson were unconstitutionally denied their right to marry which would have entitled Mr. Pederson to be added to the lease and relieve him of any obligation to prove succession rights.” As she had determined that Pederson was entitled to succeed to the tenancy based on her factual finding that Hyers permanently vacated the apartment in August 2009, it was not strictly necessary for Justice Milin to invoke the Obergefell decision, but perhaps she was seeking to bolster her ruling in case the landlord were to appeal and convince the Appellate Division that her factual conclusion about the date of Hyers’s permanent vacating of the apartment was not supported by the record.

The court denied the landlord’s motion for summary judgment, granted Pederson’s motion for summary judgment, and awarded legal fees to Pederson as the prevailing party in the lawsuit. Justice Milin scheduled a further hearing for November 5 to determine the reasonable amount of the fees to be awarded. The New York Law Journal’s report of the opinion did not list counsel for the parties.

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