DMARC 2007-CD5 212th St. LLC v Rijo

[*1] DMARC 2007-CD5 212th St. LLC v Rijo 2016 NY Slip Op 50053(U) Decided on January 19, 2016 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 19, 2016
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, J.P., Hunter, Jr., Ling-Cohan, JJ.
570834/15

DMARC 2007-CD5 212th Street LLC, Petitioner-Landlord-Appellant, -

against

Pedro Rijo, Respondent-Tenant-Respondent.

Landlord appeals from an order of the Civil Court of the City of New York, New York County (Maria Milin, J.), dated May 13, 2015, which granted tenant's motion for summary judgment dismissing consolidated holdover summary proceedings.

Per Curiam.

Order (Maria Milin, J.), dated May 13, 2015, affirmed, with $10 costs.

We sustain the dismissal of these consolidated holdover proceedings. Inasmuch as tenant's basement apartment was registered as rent stabilized, and his most recent rent stabilized renewal lease for this unit has not yet expired, landlord's commencement of a holdover proceeding based upon allegations that tenant's "month-to-month" tenancy of an unregulated apartment was terminated, was properly dismissed. Although landlord alleges that the basement apartment is not legal, "[l]andlord, in seeking a remedy against the tenant, must follow the procedural requirements of [the Rent Stabilization] [L]aw . . . [i.e.,] an eviction proceeding [pursuant to] . . . [RSC] § 2524.3(c)" (Hudsoncliff Bldg. Co. v Chandler, 279 AD2d 423 [2001]; see Aron Realty Holdings, Inc. v Pollack, 2002 NY Slip Op 50210[U] [App Term, 1st Dept 2002]). In view of our disposition, we have no occasion to address such issues as whether the basement apartment is incapable of legalization or whether legalization would be unduly burdensome (see Zaccaro v Freidenbergs, 10 Misc 3d 143[A], 2006 NY Slip Op 50096[U] [App Term, 1st Dept 2006]; 625 West End, Inc. v Howard, 2001 NY Slip Op 40496[U] [App Term, 1st Dept 2001]).

The holdover proceeding concerning apartment 4C was also properly dismissed. Tenant occupies 4C pursuant to a Temporary Transfer Agreement while the basement apartment was supposed to have been repaired. Since issues related to tenant's occupancy of the basement apartment have not yet been decided, the proceeding seeking possession of 4C is premature.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: January 19, 2016