Arkon Props., Inc. v Rivera

[*1] Arkon Props., Inc. v Rivera 2015 NY Slip Op 51051(U) Decided on July 7, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 7, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : ELLIOT, J.P., PESCE and SOLOMON, JJ.
2013-2485 K C

Arkon Properties, Inc., Appellant, July 7, 2015

against

G. Rivera Also Known as JOHN DOE, Respondent, -and- "JOHN DOE" and/or "JANE DOE," Undertenants.

Appeal from an order of the Civil Court of the City of New York, Kings County (Thomas M. Fitzpatrick, J.), entered August 15, 2013. The order granted occupant's motion to dismiss the petition in a summary proceeding brought pursuant to RPAPL 713 (11).

ORDERED that the order is affirmed, without costs.

In this summary proceeding to remove an occupant on the ground that he had entered into possession of the apartment as an incident of his employment as superintendent and that his employment had been terminated (see RPAPL 713 [11]), the Civil Court properly granted occupant's motion to dismiss the petition. In support of the motion, occupant showed that he had moved from a different rent-stabilized apartment in the building into the subject rent-stabilized apartment because he needed a larger apartment; that the subject apartment was not a superintendent's apartment; and that he had continued to pay rent, albeit at a reduced rate, after moving into the subject apartment. In these circumstances, occupant negated the existence of any agreement to surrender his rent-stabilized status upon transferring apartments (cf. Genc Realty, LLC v Nezaj, 52 AD3d 415 [2008]), and was entitled to the dismissal of the petition (530 Second St. Co., LP v Alirkan, 37 Misc 3d 52 [App Term, 2d, 11th & 13th Jud Dists 2012]; Clearview Apt. Assoc. v Ocasio, 17 Misc 3d 23 [App Term, 2d & 11th Jud Dists 2007]).

Accordingly, the order is affirmed.

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

Decision Date: July 07, 2015