Opinion
December 7, 1989
Appeal from the Supreme Court, First Department.
This appeal raises the question of whether appellant Lisa Ann Blankroth, daughter of the tenant of record, Adam Blankroth, who allegedly resided in the subject premises since the inception of the lease, is entitled to be substituted as a party to a renewal lease upon vacation of the premises by her father pursuant to the provisions of Rent Stabilization Code (Code) § 2523.5 (b) (1) (9 N.Y.CRR). Presuming that Lisa Ann Blankroth can establish that she meets the requirements of the Code provision, she is entitled to a renewal lease in her name.
The landlord, respondent Martin Garay, argues that the succession provisions of the Code are invalid, relying on rulings of the Court of Appeals which hold that, pursuant to the Rent Stabilization Law of 1969 (Administrative Code of City of New York § 26-501 et seq.), a landlord may only be required to offer a renewal lease to the tenant of record (Sullivan v Brevard Assocs., 66 N.Y.2d 489, 494; Tagert v 211 E. 70th St. Co., 63 N.Y.2d 818, 821). This court, however, has held that the succession provisions of the Rent Stabilization Code, issued subsequent to the Court of Appeals ruling in Sullivan v Brevard Assocs. (supra), are "entirely consistent with the Rent Stabilization Law" (Festa v Leshen, 145 A.D.2d 49, 61 [Sullivan, J.]), and the instant appeal is governed by that decision.
There is no merit to appellants' contention that no triable issue of fact is raised respecting the continuous residency of Lisa Ann Blankroth in the subject premises. In response to respondent landlord's summary judgment motion, appellants submitted the affidavit of Adam Blankroth which asserts that his daughter is entitled to a renewal lease in her name based upon her alleged continuous residence in the premises since the inception of the tenancy. It is well settled that the test on a motion for summary judgment is whether the pleadings raise a triable issue of fact (Hartford Acc. Indemn. Co. v Wesolowski, 33 N.Y.2d 169; Di Sabato v Soffes, 9 A.D.2d 297). In respect of this inquiry, the credibility of the parties is not a proper consideration for the court (Capelin Assocs. v Globe Mfg. Corp., 34 N.Y.2d 338), and statements made in opposition to the motion must be accepted as true (Patrolmen's Benevolent Assn. v City of New York, 27 N.Y.2d 410, 415; Cohn v Lionel Corp., 21 N.Y.2d 559). The function of a court upon a motion for summary judgment is issue finding, not issue determination (Sillman v Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404; Wiener v Ga-Ro Die Cutting, 104 A.D.2d 331, affd 65 N.Y.2d 732). Mr. Blankroth's contentions serve only to raise a triable issue of fact as to whether his daughter may be able to establish eligibility for a renewal lease under the criteria set forth in Rent Stabilization Code § 2523.5 (b) (1). Therefore, a trial is necessary to determine this question.
Concur — Sullivan, J.P., Ellerin, Smith and Rubin, JJ.