Sapp v. Clark Wilson, Inc., 2022 NY Slip Op 04184 (2022)

Citation: Sapp v. Clark Wilson, Inc., 2022 NY Slip Op 04184 (2022)
Parent Document: Sapp v. Clark Wilson, Inc., 2022 NY Slip Op 04184 (2022)
Jurisdiction: New York (state)
Effective Date: 2022-06-29
Original Source: https://www.courtlistener.com/opinion/6620002/sapp-v-clark-wilson-inc/ ↗

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As noted, the Court of Appeals' definition of "illusory tenancy" includes the element that the leases were not made "because of necessity or other legally cognizable reason" (Matter of Badem Bldgs. v Abrams, 70 NY2d at 52-53). We disagree with the conclusion of our dissenting colleague that this element is unessential to the meaning of the doctrine of illusory tenancy, or, in other words, that an illusory tenancy can be created on some other basis notwithstanding the legitimate, legally cognizable reason for the prime lease (see Matter of Avon Furniture Leasing v Popolizio, 116 AD2d at 282 [illusory tenancy existed where the prime tenant rented the subject apartment "only for purposes of furnishing and 'subletting' it at a rent considerably in excess of the lawful stabilized rent" (emphasis added) and "was in the business of renting and subletting apartments in this fashion"]; Hutchins v Conciliation & Appeals Bd., 125 Misc 2d 809, 811, 811 n 1 [Sup Ct, New York County] [the term "'illusory tenant,'" a "term of art in the course of both judicial and administrative interpretation" "implies a fraudulent or otherwise improper scheme or conveyance"]).

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