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Striking Affirmative Defenses So Three Generations of a Family Can Live Together

August 18, 2019

This is the story of me striking “creative” affirmative defenses in an owner’s use case, so that three generations of a family could live together.

Here, Respondent’s counsel came up with the following:

  • The predicate notice needed to identify alternative housing.
  • The 3-page, single-spaced, 1,067-word predicate notice was not detailed enough for Respondent to defend herself.
  • The Petitioner did not own the subject property because the deed was only recently transferred.

The Court explained that:

"The court agrees with the analysis in Gordon v Kahn, 2002 NY Slip Op 50517[U] (Civ Ct, New York County 2002) which states that as a matter of law, the statute does not require that Petitioner include in the predicate notice language explaining the rights of persons age 62 or over. Respondent was not in any danger of losing her right to an alternative apartment because the language was omitted in the predicate notice and has not been prejudiced in her ability to defend herself."

Furthermore, the Court found that:

"The notice explains in sufficient detail how and why Petitioner plans to utilize the Apartment for a family member."

Moreover, the Court found that:

"The fourth affirmative defense alleges that Petitioner signed the predicate notice on Dec. 19, 2076 yet ACRIS, the official recording website for properly, does not indicate that title was transferred to Petitioner until Dec.27,2016. Respondent also argues that the transfer of property was not in good faith. The Petitioner rightly notes that transfer of title occurs when the executed deed is delivered citing Manhattan Life Ins. Co. v Cont'l Ins. Companies, 33 NY2d 370 (1974). Here, the deed was delivered and dated Dec.12, 2016. Respondent fails to substantiate a colorable claim that the property was transferred in bad faith. The property has been under the ownership of the…family for decades and it is clear that the [family] wish[es] to use the property as a home for at least three generations of the family."

See E v. P, NYC Civil Court, NY County June 5, 2018, Index No. 62872/2017, (J. Stanley).

Respectfully submitted,


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