The court found issues of fact and reversed previous summary judgment for the tenant.  In 2000, John G. and Yunia C. Rwambuya permanently vacated their apartment at 10 Waterside Plaza in the Kips Bay area of Manhattan.  The apartment complex was regulated under the Mitchell-Lama program and later converted to market-rate housing.  A settlement agreement signed by the Rwambuyas granted them a limited right to transfer their apartment to their son, Joseph Rwambuya as a successor tenant.  The complex owner, Waterside Plaza Ground Lessee LLC, sued Joseph Rwambuya to recover the apartment claiming his parents had breached the settlement agreement by failing to maintain the apartment as their primary residence prior to transferring it to Mr. Rwambuya.

On July 10, 2014 Justice Doris Ling-Cohen of Supreme Court, New York County, denied Waterside’s motion for summary judgment and granted summary judgment for Mr. Rwambuya.  Justice Ling-Cohen did not consider Waterside’s evidence that the Rwambuyas stayed at the apartment periodically during trips to America for medical purposes and continued to receive some mail there as sufficient to determine the parents had not permanently vacated the apartment.  Waterside appealed.

On September 22, 2015 the Appellate Division, First Department, voted to reverse and reinstate the complaint.  In writing the opinion, Justice David Friedman found a question of fact existed as to whether the parents had permanently vacated the apartment or continued to use it as a nonprimary residence.  Justice Friedman held whether the parents had permanently vacated or not bears directly on whether or not Mr. Rwambuya was entitled to successor rights under the settlement agreement, precluding a grant of summary judgment.

Waterside Plaza Ground Lessee v. Rwambuya, 17 N.Y.S.3d 387 (A.D. 1 Dept. 2015) (Sep. 22, 2015) (Attorneys: Belkin Burden Wenig & Goldman, LLP, Magda Cruz of counsel, for Waterside; Law Office of Harry Kresky, for Rwambuya).

By:  Michael Twomey (Michael is a CityLaw Fellow and a New York Law School Graduate, Class of 2014)