126 W. 25th St. Realty Co. v Chea

[*1] 126 W. 25th St. Realty Co. v Chea 2013 NY Slip Op 51485(U) Decided on September 9, 2013 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 9, 2013
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, J.P., Hunter, Jr., Torres, JJ
570666/11.

126 West 25th Street Realty Co., Petitioner-Landlord-Respondent,

against

Christie Chea, Respondent-Tenant-Appellant, -and- Samuel Lewis, Respondent-Tenant. 124-126 W. 25 Street LLC, Petitioner-Landlord-Respondent, Christie Chea, Respondent-Tenant-Appellant, -and- Samuel Lewis, Respondent-Tenant.

In consolidated appeals, tenant Chea appeals, as limited by his brief, from (1) that portion of an order of the Civil Court of the City of New York, New York County (Bruce E. Scheckowitz, J.), entered August 12, 2010, which granted landlord's motion to dismiss tenant's second and fifth affirmative defenses in a nonpayment summary proceeding, (2) a final judgment of the same court (Arlene H. Hahn, J.), entered June 9, 2011, after a hearing, which awarded landlord possession and a recovery of use and occupancy in the sum of $13,800, and (3) a final judgment of the same court (Brenda S. Spears, J.), entered July 28, 2011, after a nonjury trial, which awarded landlord possession in a holdover summary proceeding. [*2]

Per Curiam.

Final judgments entered, respectively, June 9, 2011 (Arlene H. Hahn, J.) and July 28, 2011 (Brenda S. Spears, J.), affirmed, with one bill of $25 costs. Appeal from order (Bruce E. Scheckowitz, J.) entered August 12, 2010, dismissed, without costs, as subsumed in the appeal from the final judgment of June 9, 2011 (see CPLR 5501[a][1]).

The record developed in the underlying nonpayment summary proceeding establishes that tenant-appellant is not entitled to the protection of rent stabilization in connection with his occupancy of the subject West 25th Street apartment premises. The record evidence shows that when appellant initially took possession as a subtenant in November 2002, the lawful monthly rent of the stabilized apartment, together with the vacancy increase to which petitioner-landlord's predecessor would have been entitled had it leased the apartment directly to appellant, was in excess of $2,000, which would have allowed for luxury decontrol of the apartment and removal from rent stabilization upon the execution of a lease with a new tenant. In this posture, and even assuming the bona fides of appellant's pleaded defense of illusory tenancy, appellant was not wrongfully deprived of any benefits under the rent laws. Measuring his tenancy rights as of the date he moved in (see Primrose Mgt. Co. v Donahue, 253 AD2d 404, 406 (1998), appellant was initially entitled to receive only a deregulated lease of the type he eventually executed in March 2009 (see Tennant v Manhattan Skyline Mgt. Corp., 85 AD3d 557, 557 (2011). We note the absence of any record showing that petitioner or the predecessor owner colluded with the prime tenant or benefitted from any illusory tenancy scheme that may have been created.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: September 09, 2013