333 E. 49th Partners, L.P. v Siebert

[*1] 333 E. 49th Partners, L.P. v Siebert 2009 NY Slip Op 50680(U) [23 Misc 3d 132(A)] Decided on April 14, 2009 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 14, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Heitler, J.
570761/07

333 East 49th Partners, L.P., Petitioner-Appellant,

against

Marjorie Siebert, Respondent-Respondent.

Petitioner appeals from a final judgment of the Civil Court of the City of New York, New York County (David B. Cohen, J.), entered on or about July 10, 2007, after a nonjury trial, which dismissed the petition in a holdover summary proceeding.

Per Curiam.

Final judgment (David B. Cohen, J.), dated July 10, 2007, reversed, with $30 costs, and final judgment directed in favor of petitioner on the holdover petition. Execution of the warrant of eviction shall be stayed for 60 days from service of a copy of this order, with notice of entry.

Respondent Siebert failed to establish her defense of illusory tenancy on this record, which shows that the tenant of record (Flamm) resided in the stabilized apartment premises for nearly two decades before subletting it without permission; resumed occupancy of the apartment at the end of an earlier sublet and before commencement of Siebert's sublet; paid rent directly to petitioner at all relevant times; and, perhaps most significantly, did not engage in profiteering in subletting the apartment, which he sublet to Siebert at the legal regulated rent. Absent here was a showing that tenant "improperly profit[ed] by violating the rent regulations..., the hallmark of an illusory tenancy" (Primrose Mgt. Co. v Donahue, 253 AD2d 404, 405 [1998]). That the long-term subletting arrangement with Siebert may have been motivated by tenant's subjective hope that the building premises ultimately would be converted to cooperative ownership at some future point, did not, without more, warrant application of the illusory tenancy doctrine (see Bozzi v Goldblatt, 186 AD2d 82 [1992]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: April 14, 2009