Opinion
No. 2012–473 RIC.
2014-10-3
SKYLINE TERRACE COOPERATIVE, INC., Landlord–Appellant, v. Rita Marie ORTIZ–ROBLES, as Executor of the Estate of Marie Ortiz, Tenant–Respondent, and Rita Marie Ortiz–Robles, Undertenant–Respondent, and “John Doe” and “Jane Doe,” Undertenants.
Present: PESCE, P.J., ALIOTTA and ELLIOT, JJ.
Appeal from an order of the Civil Court of the City of New York, Richmond County (Marina C. Mundy, J.), entered January 3, 2012. The order granted a motion by Rita Marie Ortiz–Robles, individually and as executor of the estate of Marie Ortiz, for summary judgment dismissing the petition, and denied landlord's cross motion for summary judgment in a holdover summary proceeding.
ORDERED that the order is affirmed, without costs.
Landlord commenced this holdover summary proceeding to recover possession of an apartment in a co-operative on the ground that the estate of Marie Ortiz had breached a substantial obligation of the tenancy by permitting the premises to be occupied by Rita Marie Ortiz–Robles, the deceased tenant's daughter and the executor of the estate, without landlord's permission or consent, in violation of the use, sublet, and assignment provisions of the proprietary lease. Ms. Ortiz–Robles (occupant) moved individually and on behalf of the estate for summary judgment dismissing the petition, and landlord cross-moved for summary judgment. The Civil Court granted the motion and denied the cross motion.
Paragraph 28 (c) of the proprietary lease allows the co-operative corporation to terminate the lease “[i]f there be an assignment of this lease, or any subletting hereunder, without full compliance with the requirements of paragraphs 12 or 13 hereof; or if any person not authorized by paragraph 12 [ sic ] shall be permitted to use or occupy the Apartment.”
With respect to paragraph 13 of the lease, governing assignments, while landlord alleges that the estate failed to comply with certain provisions of that paragraph, landlord does not appear to claim that there has been an actual assignment of shares in violation of that paragraph, which would constitute a default upon which the termination of the proprietary lease may be based. Furthermore, with respect to paragraph 12 of the lease, governing sublets, landlord has not demonstrated that the estate sublet the apartment to occupant, and a sublease will not be assumed under the circumstances presented ( Klein Props., LLC v. Estate of Hammonds, 33 Misc.3d 140[A], 2011 N.Y. Slip Op 52134 [U] [App Term, 9th & 10th Jud Dists 2011]; see PLWJ Realty, Inc. v. Gonzalez, 285 A.D.2d 370 [2001]; 235 W. 71 St. LLC v. Chechak, 4 Misc.3d 114 [App Term, 1st Dept 2004]; MF Holding, LLC v. Apostolopoulos, 2002 N.Y. Slip Op 50168[U] [App Term, 1st Dept 2002] ). Finally, paragraph 11 of the proprietary lease, governing the permitted use of the apartment, allows the apartment to be used as a private dwelling for the lessee and the lessee's immediate family. It is undisputed that, at the time that occupant moved into the subject apartment, which she co-occupied with her mother, her occupancy was authorized. Occupant's mother's death did not render the occupancy unauthorized ( but cf. Joint Props. Owners v. Deri, 113 A.D.2d 691 [1986] ).
Although paragraph 28(c) states that the cooperative is permitted to terminate the lease “if any person not authorized by paragraph 12 shall be permitted to use or occupy the Apartment,” this is an apparent typographical error, as the permitted use of the apartment is governed by paragraph 11, not paragraph 12. Both the parties and the Civil Court have proceeded as if a violation of the use clause of paragraph 11 is a basis upon which to terminate the lease.
We note that the proprietary lease at issue does not provide a mechanism for the co-operative corporation to obtain possession of an apartment from an authorized occupant and heir to the appurtenant shares when the co-operative corporation does not approve the transfer of shares to the heir upon the shareholder's death. “In cases of doubt or ambiguity, a contract must be construed most strongly against the party who prepared it, and favorably to a party who had no voice in the selection of its language” ( Jacobson v. Sassower, 66 N.Y.2d 991, 993 [1985] ).
Accordingly, the order is affirmed. PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.