In New York City, building superintendents often receive free live-in apartments in buildings they service for the duration of their employment. So long as no independent landlord-tenant relationship is created, the super and their family may live in the apartment while employed. They must vacate the apartment upon the termination of their employment.

A Manhattan building owner recently called upon Adam Leitman Bailey, P.C. to evict a terminated super who refused to vacate an apartment (given to him incident to his employment as superintendent) after the landlord terminated him.

The law does not require any predicate eviction notice. Instead, once a super is terminated, a landlord may file a holdover eviction proceeding and go straight to court. When the terminated super and his family refused to vacate, we filed the requisite holdover proceeding. The super retained private counsel and answered the petition.

In the answer, the super asserted numerous affirmative defenses, including (i) lack of a proper predicate notice, (ii) that the super is a rent stabilized tenant of the apartment (which, he argued, prevents him from being evicted), and (iii) failure to properly serve the petition. The super also counterclaimed for attorneys’ fees.

We immediately moved for summary judgment. In our motion we demonstrated our client’s case by showing that our client owned the building, that the super was given the apartment incident to employment, that the employment was terminated, and that the super refused to vacate the apartment. We demonstrated through applicable case law that all possessory rights in such a case cease upon termination of employment.

We also moved to dismiss the super’s affirmative defenses. Here, we demonstrated (i) that the applicable rules of real estate procedure expressly state that no prior notice is required in a super holdover proceeding, (ii) that the super cannot be a rent stabilized tenant because the super never had a lease for the apartment, never paid rent for the apartment, and no landlord-tenant relationship was ever created, and that even if the occupied apartment is rent stabilized, a super must still vacate it when their employment ends, and (iii) that the affidavits of service of the petition confirmed proper service and the super failed to adequately challenge them.

Additionally, we moved to dismiss the counterclaim for attorneys’ fees on the grounds that there did not exist any contract between the parties entitling the super to attorneys’ fees even if it were the prevailing party.

In opposition, the super’s counsel raised numerous additional defenses but failed to include an affidavit from the super himself. On reply, we argued that the opposition papers were insufficient to defeat summary judgment because they contained attorney arguments not made on the basis of personal knowledge.

The court agreed with our position writing that, “Respondent has failed to meet its burden of proving there is a material issue of fact. Respondents’ attorney’s affirmation is not based upon personal knowledge and has no probative value which is wholly insufficient to defeat summary judgment.” The court similarly adopted our arguments in its decision to dismiss the super’s affirmative defenses and its counterclaims.

In the end, the court awarded to our client summary judgment of possession with a warrant of eviction.

Partner Vladimir Mironenko and Michael Nesheiwat, associate attorney in the firm’s Real Estate Litigation and Landlord-Tenant groups, represented the owner on behalf of Adam Leitman Bailey, P.C.