33 Fifth Ave. Owners Corp. v 33 Fifth Endo, LLC

[*1] 33 Fifth Ave. Owners Corp. v 33 Fifth Endo, LLC 2015 NY Slip Op 50850(U) Decided on June 4, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 4, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Hunter, Jr., J.P., Shulman, Ling-Cohan, JJ.
570013/15

33 Fifth Avenue Owners Corp. Petitioner-Landlord-Appellant, -

against

33 Fifth Endo, LLC, Respondent-Tenant-Respondent, -and- "John Doe," Respondent.

Landlord appeals from an order of the Civil Court of the City of New York, New York County (James E. d'Auguste, J.), entered August 7, 2013, which denied its cross motion for summary judgment and granted tenant's motion for summary judgment dismissing the petition in a nonpayment summary proceeding.

Per Curiam.

Order (James E. d'Auguste, J.), entered August 7, 2013, affirmed, with $10 costs.

We sustain the grant of tenant's motion for summary judgment dismissing the nonpayment proceeding. In the absence of a provision in the parties' proprietary lease agreement expressly making the sublet surcharge at issue herein a part of the "rent" of the premises, such surcharge may not be treated as rent for purposes of maintaining a nonpayment proceeding pursuant to RPAPL 711(2) (see Dayton Towers Corp. v Gethers, 24 AD3d 663 [2005]; Matter of Bedford Gardens Co. v Silberstein, 269 AD2d 445 [2000]; Matter of Petrakakis v Crown Hotels, 3 AD2d 635 [1956]). In any event, were we to reach the merits, we would conclude, as did the motion court, that paragraph 15 of the proprietary lease, as amended, only authorizes landlord to collect one 25% monthly sublet surcharge per apartment at any one time; it does not authorize a 25% surcharge for each sublease of the apartment at any given time.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur

Decision Date: June 04, 2015