Sasson v Gissler

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[*1] Sasson v Gissler 2005 NY Slip Op 52278(U) Decided on October 26, 2005 Civil Court, New York County Jaffe, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 26, 2005
Civil Court, New York County

Sam Sasson and JOSEPH SASSON, Petitioners-Landlord,

against

Gary Gissler, Respondent-Tenant, "JOHN DOE" and "JANE DOE," Respondents-Undertenants.



L&T 96753/03

Barbara Jaffe, J.

Petitioners move for an order restoring the proceeding to the court calendar, and

upon restoration, pursuant to CPLR 3212(b), granting them summary judgment on the instant commercial holdover petition, use and occupancy, and reasonable attorney fees. Respondent opposes the motion and cross-moves pursuant to CPLR 3212 for an order granting him summary judgment dismissing and/or denying the petition based on his first, second and/or third affirmative defenses. Respondent does not oppose petitioners' application to restore the proceeding.

I. PETITIONERS' MOTION FOR SUMMARY JUDGMENT

Petitioners assert that respondent's commercial lease expired by its own terms and the premises at issue, a loft, is not rent-stabilized. They seek dismissal of respondent's second affirmative defense to the petition in which he contends that, with the knowledge and/or acquiescence of petitioners, he converted the premises to a living/working space, thereby entitling him to the protection of the Emergency Tenant Protection Act (ETPA), continued possession of the premises, a renewal of his lease, and a determination that he has been overcharged. Petitioners argue that pursuant to Wolinsky v Kee Yip Realty Corp., 2 NY3d 487 (2004), and Gloveman Realty Corp. v Jefferys, 18 AD3d 812 (2d Dept 2005), respondent is not entitled to such relief.

In Wolinsky, the Court of Appeals, in affirming the decision of the Appellate Division below, declined to extend the protections of the ETPA to lofts illegally converted to residential use by tenants who resided in a neighborhood that was not zoned for purely residential use. It observed that the Loft Law "was not intended to foster future illegal conversions or undermine legitimate municipal zoning prerogatives. . . . [and that] [i]f the prior-enacted ETPA already [*2]protected illegal residential conversions of manufacturing space, significant portions of the Loft Law would have been unnecessary." (2 NY3d at 493 [citations omitted]). Thus, the Court opined, "although such illegal conversions are not expressly exempted from ETPA coverage, it is evident that the Legislature did not view the ETPA as safeguarding the interests of the loft pioneers.'" (Id.).

The Court also maintained that had the City amended the pertinent zoning resolution to include purely residential use or rezoned the tenants' neighborhood, and had the Legislature adopted a new eligibility period that would confer Loft Law protections on later conversions, residential loft units like the tenants' would be legal or capable of being legalized. (Id.). Absent such steps, however, the Court concluded that the ETPA "cannot be extended to these illegally converted lofts." (Id.). The parties agree that the Court did not address the issue presented here of whether a loft unit that is not entitled to Loft Law protection but is otherwise capable of being legalized is entitled to the protections of the ETPA.[FN1]

Petitioners argue that the Appellate Division, Second Department, in Gloveman, 18 AD3d 812, held that the ETPA does not protect such loft units. In its brief decision, the Appellate Division concluded, citing Wolinsky, that the illegally converted lofts in question were neither eligible for protection under the Loft Law nor entitled to the protections of the ETPA. Although the Appellate Division makes no mention of whether the lofts were capable or incapable of being legalized, petitioners cull the pertinent underlying facts from the trial court's decision in Gloveman, observing that the premises in issue had no residential certificate of occupancy, that the zoning permitted residential use, and that the landlord had acquiesced in the residential use of the premises. (Gloveman Realty Corp. v Jefferys, NYLJ, Nov. 26, 2003, at 30, col 1 [Sup Ct, Kings County]). Thus, petitioners assert that the Appellate Division's decision in Gloveman stands for the proposition that loft units that are capable of being legalized are not protected by the ETPA. Respondent disagrees, claiming that absent a clear holding to that effect, petitioners cannot rely upon Gloveman.

The Second Department is apparently of the opinion that given the opportunity, the Court of Appeals would decline to extend the protections of the ETPA to a loft unit that was converted after the expiration of the Loft Law's window period, regardless of its potential for otherwise being legalized (Gloveman, 18 AD3d 812), a prediction that is reasonably inferred from the analysis set forth in Wolinsky. To the extent that 315 Berry Street Corp. v Hanson Fine Arts, NYLJ, Oct. 4, 2005, at 29, col 5 (App Term, 2d & 11th Jud Dists) is to the contrary, I am not bound by it (see People v Pestana, 195 Misc 2d 833 [Crim Ct, New York County 2003] [Jaffe, J.] [local criminal court need not deem itself bound by decision of appellate term of another judicial department, even if only to extent it does not conflict with law as stated by courts that directly bind it]; Juniper Walk Condominium v Patriot Mgmt. Corp., 3 Misc 3d 748, 752 [City Ct, White Plains 2004 [same]), and, in any event, it is not persuasive.

I therefore find that pursuant to Gloveman, 18 AD3d 812, which likely binds me in the absence of a First Department decision interpreting Wolinsky (see Mountain View Coach Lines v [*3]Storms, 102 AD2d 663, 664 [2d Dept 1984]; Pestana, 195 Misc 2d at 836-838), respondent's loft unit is not protected under the ETPA, even though it is capable of being legalized.

Accordingly, petitioners' motion for summary judgment is granted and respondent's second affirmative defense is dismissed.

II. RESPONDENT'S CROSS-MOTION FOR SUMMARY JUDGMENT

In his first affirmative defense, respondent seeks a dismissal of the proceeding claiming that it was improperly commenced in the commercial landlord/tenant part of the New York City Civil Court rather than the Housing Part. As petitioners have raised an issue of fact as to their awareness of and acquiescence in respondent's residential use of the premises, summary judgment on this ground is precluded. In U.B.O. Realty Corp. v Mollica, 175 Misc 2d 897 (App Term, 1st Dept 1997), affd 257 AD2d 460 (1st Dept 1999), by contrast, there was a finding that the landlord knew of or acquiesced in the tenant's residential use of premises and therefore, the tenant was entitled to a dismissal. Similarly, in 7-9 East 32nd St. Assoc. v Tighe, NYLJ, Feb. 6, 1996, at 25, col 2 (App Term, 1st Dept), as the petition alleged that the premises were commercial, whereas the evidence established that they were lived in, the dismissal of the commercial nonpayment proceeding was affirmed.

In his third affirmative defense, respondent seeks dismissal of the petition to the extent that it seeks use and occupancy on the ground that there is no residential certificate of occupancy for his unit. Again, as there is an issue as to whether petitioners were aware of and acquiesced to respondent's residential use of the premises in violation of the commercial certificate of occupancy for the premises which would preclude an award of use and occupancy, respondent is not entitled to summary judgment on this affirmative defense. In Kee Yip Realty Corp. v Wolinsky, NYLJ, Oct. 7, 2005, at 18, col 1 (Sup Ct, New York County), by contrast, summary judgment was granted respondent as there was no issue as to the landlord's knowledge and acquiescence to her residential use of the premises in question.

Accordingly, respondent's cross-motion for summary judgment is denied.

_______________________________

Barbara Jaffe, JCC

DATED:October 26, 2005

New York, New York Footnotes

Footnote 1: "Landlord answered and moved for summary judgment solely on the basis that the building could not legally be converted to residential use and that tenants therefore were not entitled to any relief." (Id. at 490-491).



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