42nd & 10th Assoc., LLC v Izeki

[*1] 42nd & 10th Assoc., LLC v Izeki 2015 NY Slip Op 51915(U) Decided on December 30, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 30, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Shulman, Ling-Cohan, JJ.
570305/15

42nd and 10th Associates, LLC, Petitioner-Landlord-Respondent, -

against

Henry Izeki, Respondent-Tenant-Appellant, - and - "John Doe" and/or "Jane Doe," Respondents-Undertenants.

Tenant appeals from a final judgment of the Civil Court of the City of New York, New York County (Jack Stoller, J.), entered on or about February 17, 2015, after a nonjury trial, which awarded possession to landlord in a holdover summary proceeding.

Per Curiam.

Final judgment (Jack Stoller, J.), entered on or about February 17, 2015, affirmed, with $25 costs, for the reasons stated by Jack Stoller, J. at Civil Court.

The trial evidence showed, and it was essentially undisputed, that tenant listed his rent stabilized apartment on the Airbnb website at a nightly rental rate of $649 (plus other charges), with 4:00 PM check-in and 11:00 AM check-out times; and that during the first few weeks of his tenancy, there were several documented incidents of individuals appearing at the building, sometimes with luggage, who indicated that they were renting the apartment. This evidence supported the trial court's express factual findings that tenant "rented the subject premises out as if it was a hotel room" and engaged in profiteering (see Rent Stabilization Code [9 NYCRR] §§ 2524.3[h], 2525.6[b]). Thus, we reject tenant's contention that the court's determination was based on an overly broad negative inference drawn either from tenant's "relentlessly evasive" testimony on landlord's direct case or his failure to testify on his own behalf (see Arrin C. v New York City Dept. of Educ., 118 AD3d 485 [2014]).

Moreover, we reject tenants' contention that landlord was required to serve a notice to cure and permit him an opportunity to cure, where, as here, tenant charged the subtenants far in excess of the legal rent and commercialized the premises from the inception of his tenancy (see Gruber v Anastas, 100 AD3d 829 [2012]; Matter of 151-155 Atl. Ave. v Pendry, 308 AD2d 543 [*2][2003]; 51 W. 86th St. Assoc. LLC v Fontana, 28 Misc 3d 140[A], 2010 NY Slip Op 51602 [U] [App Term, 1st Dept 2010]; cf. Cambridge Dev., LLC v Staysna, 68 AD3d 614 [2009]). "The integrity of the rent stabilization scheme is obviously undermined if tenants, who themselves are the beneficiaries of regulated rentals, are free to sublease their apartments at market levels and thereby collect the profits which are denied the main landlord" (Continental Towers Ltd. Partnership v Freuman, 128 Misc 2d 680, 681 [1985]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: December 30, 2015