137 Oak Mgt., Inc. v Zamorski

[*1] 137 Oak Mgt., Inc. v Zamorski 2015 NY Slip Op 50202(U) Decided on February 23, 2015 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 23, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., SOLOMON and ELLIOT, JJ.
2013-1773 K C

137 Oak Management, Inc., Appellant,

against

Richard Zamorski, Respondent.

Appeal from a final judgment of the Civil Court of the City of New York, Kings County (Eleanora Ofshtein, J.), dated June 27, 2011. The final judgment, after a nonjury trial, dismissed the petition in an RPAPL 713 (11) summary proceeding.

ORDERED that the final judgment is affirmed, without costs.

Landlord commenced this summary proceeding to recover possession of "apartment A1," alleging that the apartment is neither rent stabilized nor rent controlled; that it was solely used for superintendent purposes; and that occupant—who resides in the apartment and who was employed by the building's former owner as the building's superintendent—was no longer the superintendent (see RPAPL 713 [11]). Occupant answered, alleging that, upon the termination of his employment as the building's superintendent, his status reverted to that of a rent-stabilized tenant, and that landlord had failed to serve him with a notice terminating his rent-stabilized tenancy. Following a nonjury trial, the Civil Court found that occupant was a rent-stabilized tenant and dismissed the petition. We affirm.

The apartment in which occupant resides is located in a single-room-occupancy building which landlord purchased in 2008. The testimony and documentary evidence presented at trial indicate that, as early as 1996, occupant had resided in room A as a rent-stabilized tenant and that, in 2005, he was formally employed as the building's superintendent by the building's former owner. Occupant's employment ceased, however, after landlord purchased the building. Also, sometime in 2005, room A and room A1, a smaller room adjacent to room A, were combined into one room. Landlord failed to establish that either room A1 or room A was officially designated as a superintendent's unit, and its own DHCR documentary evidence showed that room A1 was rent stabilized from 1995 to 2005. Although there is some discrepancy in the proof as to when exactly room A and room A1 were combined, there was no evidence that occupant's move into either room was made as an incident of his employment as the superintendent, and that such move was necessary for him to perform his superintendent duties (see OLR LBCE LP v Trottman, 42 Misc 3d 1227[A], 2014 NY Slip Op 50238[U] [Civ Ct, NY County 2014]). Moreover, the record is devoid of any indication that it was occupant's intention to surrender his rent-stabilized status when he became the building's superintendent. In the circumstances presented, occupant's acceptance of employment and any resulting rent concessions which he may have been given, did not operate to terminate occupant's rent-stabilized tenancy (see Clearview Apt. Assoc. LP v Ocasio, 17 Misc 3d 23 [App Term, 2d & 11th Jud Dists 2007]; Madali Inc. v Brooms, 149 Misc 2d 714 [App Term, 9th & 10th Jud Dists 1991]; OLR LBCE LP v Trottman, 42 Misc 3d 1227[A], 2014 NY Slip Op 50238[U]; Yui Woon Kwong v Guido, 129 Misc 2d 211 [Civ Ct, NY County 1985]). Consequently, the Civil Court properly dismissed the petition after determining that, upon the termination of occupant's employment, occupant became a rent-stabilized tenant once again.

Accordingly, the final judgment is affirmed.

Pesce, P.J., Solomon and Elliot, JJ., concur.

Decision Date: February 23, 2015