Opinion
December 17, 1998
Appeal from the Supreme Court, New York County (Leland DeGrasse, J.).
Use and occupancy should not be for more than the regulated rent because, plaintiff landlord having filed the requisite certificate of occupancy pursuant to Multiple Dwelling Law § 286 Mult. Dwell. and otherwise "legalized" this loft building pursuant to article 7-C of the Multiple Dwelling Law, defendant tenants are protected by the Rent Stabilization Law (Multiple Dwelling Law § 286 Mult. Dwell. [3], [13]; see, Axelrod v. French, 148 Misc.2d 42). The tenants' refusal to execute what was the first, authorized rent stabilized lease offered by the landlord constituted a ground for commencing eviction proceedings ( cf., Rent Stabilization Code [9 N.Y.CRR] § 2524.3 [f]; 923 Fifth Ave. Assocs. v. Eisenberg, 191 A.D.2d 396, appeal dismissed 82 N.Y.2d 802), without need for first serving a notice to cure ( see, Childress v. Lipkis, 72 A.D.2d 724; Carriage House Realty Co. v. Conlon, 128 Misc.2d 143). While an issue of fact exists as to whether the landlord waived its right to recover possession by allowing the tenants to remain in occupancy without a written lease while continuing to accept rent at the registered rate for nearly 18 months before seeking to terminate the tenancy ( see, Lee v. Wright, 108 A.D.2d 678), the issue appears to be of little consequence, if not entirely academic, since any right of possession by the landlord would in any event be subject to the tenants' right to cure pursuant to RPAPL 753 (4) ( see, 923 Fifth Ave. Assocs. v. Eisenberg, supra; accord, Fairbanks Gardens Co. v. Gandhi, 168 Misc.2d 128, affd 244 A.D.2d 315; cf., 67 8th Ave. Assocs. v. Hochstadt, 88 A.D.2d 843).
Concur — Milonas, J. P., Ellerin, Rubin and Mazzarelli, JJ.