Treasure Tower Corp. v Santos

[*1] Treasure Tower Corp. v Santos 2010 NY Slip Op 51551(U) [28 Misc 3d 140(A)] Decided on September 2, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 2, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Hunter, Jr., J.
570295/09

Treasure Tower Corp., Petitioner-

against

Miguel Santos, Respondent, -and- Chen Shu Hui, Respondent-Appellant.

Respondent Chen appeals from a final judgment of the Civil Court of the City of New York, New York County (Pam B. Jackman Brown, J.), entered on or about December 4, 2008, after a nonjury trial, which awarded possession to petitioner.

Per Curiam.

Final judgment (Pam B. Jackman Brown, J.), dated December 4, 2008, affirmed, with $25 costs.

On or about January 17, 2008, petitioner commenced this holdover summary proceeding to recover possession of the subject apartment premises. The proceeding was commenced against respondent Santos, who had served as the superintendent of the building and was afforded use of the unit incident to his employment, which was terminated on or about January 4, 2008. There is no evidence in the record suggesting that a written lease agreement between petitioner and Santos existed; neither a lease nor secondary evidence of the terms of such a lease is in the record on appeal. Moreover, Santos did not pay rent for the unit. Petitioner and Santos settled the proceeding pursuant to a stipulation requiring Santos to vacate the unit by a specified date, and a final judgment was entered in favor of petitioner.

Respondent Chen subsequently moved to vacate the final judgment, asserting that he "sublet" the unit from Santos and that Santos charged excessive "rent" for the unit, thereby creating an illusory prime tenancy and affording Chen the protections of the Rent Stabilization Law. The final judgment was vacated as against Chen originally denominated in the caption as "John Doe" and a trial was held as to Chen's affirmative defense based on an alleged illusory prime tenancy. Civil Court rejected the defense and awarded petitioner a final judgment against Chen.

A superintendent who occupies an apartment purely as an incident of employment is a [*2]licensee and must vacate the unit upon the termination of his or her employment (see RPAPL § 713[11]; Genc Realty LLC v Nezaj, 52 AD3d 415 [2008]; Mohr v Gomez, 173 Misc 2d 553 [1997]). Here, a fair interpretation of the evidence supports the trial court's finding that Santos occupied the unit incident to his employment as the superintendent, its tacit finding that no landlord-tenant relationship ever existed between petitioner and Santos, and its conclusion that Chen simply assumed Santos' license to occupy the unit until the expiration of that license, which occurred when Santos' employment was terminated. That the unit was erroneously registered on certain older Division of Housing and Community Renewal filings as rent stabilized does not, on this record, compel a contrary conclusion (see 546 W. 156th St. HDFC v Smalls, 43 AD3d 7, 11 [2007]). Notably, the unit has been correctly registered since 2003 as employee-occupied and exempt from rent stabilization. At bottom, the existence of an illusory prime tenancy necessarily implies a landlord-tenant relationship between the alleged illusory prime tenant and the building owner, a relationship not established here (see generally Primrose Mgt. v Donahoe, 253 AD2d 404 [1998]; Avon Furniture Leasing Inc. v Popolizio, 116 AD2d 280 [1986]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: September 02, 2010