Lenox Hill Hosp. v 305/72 Owners Corp.

Lenox Hill Hosp. v 305/72 Owners Corp. 2011 NY Slip Op 08836 Decided on December 8, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 8, 2011
Andrias, J.P., Saxe, Sweeny, Acosta, Manzanet-Daniels, JJ.
6281 601901/09

[*1]Lenox Hill Hospital, Plaintiff-Respondent,

v

305/72 Owners Corp., Defendant-Appellant.




Kagan Lubic Lepper Lewis Gold & Colbert, LLP, New York
(Jesse P. Schwartz of counsel), for appellant.
Belkin Burden Wenig & Goldman, LLP, New York (Magda L.
Cruz of counsel), for respondent.

Order, Supreme Court, New York County (James A. Yates, J.), entered October 18, 2010, which, upon reargument, adhered to its prior order denying the motion to dismiss the second cause of action seeking declaratory relief, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment dismissing the complaint.

The proprietary lease at issue requires consent to sublet units and authorizes the imposition of conditions on the granting of such consent. Plaintiff-hospital, proprietary lessee in a building owned by defendant, is subject to the same subletting rules applicable to other shareholders (see Spiegel v 1065 Park Ave. Corp., 305 AD2d 204, 205 [2003]). Thus, the part of the second cause of action that seeks a declaration that defendant does not have a right to require that plaintiff ask permission to sublet or meet any specific requirements regarding subletting should have been dismissed.

Moreover, even assuming that plaintiff is entitled to a declaration that the arrangements under which its employees occupy the cooperative apartments at issue are not sublets, which declaration plaintiff also seeks in its second cause of action, the arrangement nevertheless violates the provision in the proprietary lease governing occupancy. Indeed, plaintiff's employees are not the proprietary lessees, and plaintiff cannot occupy the apartments within the meaning of the proprietary lease (see Conversion Equities v Sherwood House Owners Corp., 151 AD2d 635, 637 [1989]). Contrary to the motion court's finding, the occupancy provision is consistent with Real Property Law
§ 235-f(2) (see Barrett Japaning, Inc. v Bialobroda, 68 AD3d 474, 475 [2009]). Accordingly, the second cause of action fails to state a claim, because the occupancy provision of the [*2]proprietary lease "conclusively establishes a defense to the asserted claim[] as a matter of law" (Leon v Martinez, 84 NY2d 83, 88 [1994]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 8, 2011

CLERK