72nd St. Assoc., LLC v Persson

[*1] 72nd St. Assoc., LLC v Persson 2015 NY Slip Op 50345(U) Decided on March 23, 2015 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 23, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Ling-Cohan, JJ.
570188/14

72nd Street Associates, LLC, Petitioner-Landlord- Respondent, -

against

Gunilla Persson, Respondent-Tenant-Appellant.

Tenant, as limited by her brief, appeals from (1) a final judgment of the Civil Court of the City of New York, New York County (Jack Stoller, J.), entered on or about February 11, 2014, after a nonjury trial, which awarded possession to landlord in a holdover summary proceeding, and (2) that portion of an order of the same court (Laurie L. Lau, J.), entered November 22, 2013, which granted landlord's motion for summary judgment dismissing tenant's third and sixth affirmative defenses, and denied tenant's cross motion to dismiss the petition.

Per Curiam.

Final judgment (Jack Stoller, J.), entered on or about February 11, 2014, affirmed, with $25 costs. Appeal from order (Laurie L. Lau, J.), entered November 22, 2013, dismissed, without costs, as subsumed in the appeal from the final judgment.

We sustain the possessory judgment awarded in favor of landlord upon the trial of this holdover proceeding. The evidence established that tenant's unregulated lease agreement expired by its terms on June 30, 2013, and that she had no right to continued occupancy of the East 72nd Street penthouse apartment premises. Insofar as tenant claims the existence of an oral agreement extending her lease for two additional years, any such agreement was barred by the statute of frauds (see General Obligations Law § 5-703[2]). Furthermore, since tenant also failed to show that the parties ever reached a complete oral agreement as to the material terms of the lease extension, including the amount of rent to be paid during the extended term, there is no merit to her contention that the doctrine of partial performance takes the alleged agreement outside the scope of the statute of frauds (see 410 BPR Corp. v Chmelecki Asset Management, Inc., 51 AD3d 715, 717 [2008]).

Tenant's remaining affirmative defenses were properly dismissed on landlord's summary judgment motion. The documentary evidence submitted showed that the subject apartment was luxury deregulated in 1992, following expiration of the RPTL 421-a tax benefits and vacatur of the then-stabilized tenant, one Frank Nolan (see RPTL 421-a [2][f][i]; see also Matter of 73 Warren St., LLC v State of NY Div. of Hous. & Community Renewal, 96 AD3d 524 [2012]). Inasmuch as tenant's tenancy commenced several years thereafter, pursuant to an unregulated [*2]lease agreement dated October 13, 1995, her tenancy is unregulated. Tenant's bare, conclusory allegations that she resided in the apartment "as early as November 1991" and became the rent stabilized tenant when Nolan "assigned me his rent stabilized lease," were insufficient to defeat summary judgment. The scant evidence submitted by tenant was insufficient to raise any triable issue as to whether she resided in the apartment at any time prior to the October 1995 commencement of her lease. In any event, any claim that tenant became a rent stabilized tenant by way of an assignment from Nolan is without merit (see Rent Stabilization Code [9 NYCRR] § 2525.6; Real Property Law § 226-b).

Not did landlord's post-petition commencement and immediate discontinuance (two days later) of a nonpayment proceeding vitiate this holdover proceeding or mislead tenant to her prejudice (see Rockaway One Co., LLC v Califf, 194 Misc 2d 191 [App Term, 2d & 11th Jud Dists 2002]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur

Decision Date: March 23, 2015