San-Dar Associates v. Permanent Mission of Spain to the United Nations

—Order of the Appellate Term of the Supreme Court, First Department (Ostrau, P. J., Riccobono and Mc-Cooe, JJ.), entered October 8, 1992 which, to the extent appealed from, affirmed an order of the Civil Court, New York County (Phyllis Gangel-Jacob, J.), entered April 29, 1988, denying petitioner’s motion for summary judgment, unanimously affirmed, with costs.

Petitioner landlord served a notice of non-renewal upon respondent on or about October 29, 1986, seeking to terminate the rent stabilized tenancy of respondent Permanent Mission of Spain to the United Nations upon the ground of non-primary residence.

The lease agreement entered into between respondent and petitioner’s predecessor identified the authorized occupant of the apartment as Juan Manuel Cabrero Hernandez. It also carried a rider which stated, "It is understood and agreed that if tenant is transferred from New York City, his successor may take over the Apt, but must first be approved by the Landlord.” It is clear, therefore, that the parties to the lease identified and contemplated a class of persons authorized to occupy the apartment on a rent stabilized basis, and the controlling issue is whether the current occupant falls within the authorized class and is occupying the apartment as a primary residence (Matter of Schwartz Landes Assocs. v New York City Conciliation & Appeals Bd., 117 AD2d 74, 76-77). Concur — Rosenberger, J. P., Ellerin, Ross, Nardelli and Williams, JJ.