Summary
finding tenant could not be evicted in illegal-sublet proceeding when landlord directed proof only to tenant's non-primary residence
Summary of this case from Westchester Plaza Holdings, LLC v. NorwoodOpinion
July 5, 2000.
Order of the Appellate Term of the Supreme Court, First Department, entered October 25, 2000, which affirmed an order of the Civil Court, New York County (Ulysses Leverett, J.), entered on or about July 8, 1999, unanimously reversed, on the law and the facts, without costs, and the petition dismissed.
Eric H. Kahan, for petitioner-respondent.
José Luis Torres, for respondents-appellants.
Before: Nardelli, J.P., Mazzarelli, Ellerin, Saxe, Buckley, JJ.
The petition should have been dismissed for the reasons stated by Phyllis Gangel Jacob, J., in her dissenting memorandum at Appellate Term. The landlord brought this action as a holdover proceeding claiming that the tenant had illegally sublet the apartment. However, instead of as proof directed to an illegal sublet, the landlord's evidence was submitted on the theory that the tenant no longer used the apartment as her primary residence. Civil Court found that this ground was proved, and awarded the landlord possession of the apartment. To sustain a claim based on non-primary residence, the landlord was required to serve the tenant with notice of its intent not to offer a renewal lease not more than 150 and not less than 120 days before the end of the lease term (see, Golub v. Frank, 65 N.Y.2d 900; see also, Hudson Assocs. v. Benoit, 226 A.D.2d 196). Since the landlord did not serve the tenant with the requisite notice, its petition should have been dismissed.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.