Judges: Hoffman
Filed Date: 11/13/1998
Status: Precedential
Modified Date: 10/19/2024
OPINION OF THE COURT
This matter comes before the court upon petitioner’s motion
Petitioner commenced these proceedings
The parties agreed that the building was built well before . 1974 (specifically, 1890). Petitioner commenced these proceedings in the residential housing part, but asserted that the leases permit commercial use only and have expired. Petitioner contends that because the building is a loft, respondents were under an affirmative obligation to file an application for a determination of coverage under article 7-C of the Multiple Dwelling Law (Loft Law) with the Loft Board. If the Board found the building to be qualified for coverage, the parties would then begin the process of legalizing the property or converting it from commercial to residential status. A residential certificate of occupancy could then be issued. Once the building was brought into compliance with the provisions of the Loft Law, the Rent Stabilization Law of 1969 (Administrative Code of City of NY, tit 26, ch 4 [RSL]) and Rent Stabilization Code (9 NYCRR parts 2520-2530) would govern the property. (29 RCNY 2-01 [m].) The Loft Board, however, no longer entertains applications for interim multiple dwelling status. Respondents’ last day to file an application for coverage was June 4, 1994. (29 RCNY 1-06.1 [a].) Consequently, according to petitioner, respondents are not only ineligible for rent stabilization protection at present, but are foreclosed from acquiring such protection any time in the future.
Respondents aver further that petitioner’s officer, who is the agent for the building, worked for the net lessees in 1983 and continued to work in the building through the present. Respondents assert that petitioner’s officer has had full personal knowledge at all times of the residential nature of respondents’ occupancy of the building. In their affidavits, respondents literally dared petitioner to submit an affidavit denying respondents’ factual assertions.
Both in support of its motion and in opposition to respondents’ cross motion for summary judgment, petitioner did not controvert respondents’ material factual assertions; rather, petitioner relied upon the lease provision stipulating commercial use of the lofts and the expiration of those leases. Facts not denied on a motion for summary judgment are deemed admitted. (Kuehne & Nagel v Baiden, 36 NY2d 539 [1975].)
Respondents contend that the Loft Law has no bearing upon this case. They assert that regardless of the nominally commercial-use clause contained in their leases, the building has contained at least six residential units since 1981 and was built prior to 1974, thereby qualifying respondents for protection under the Rent Stabilization Law and Emergency Tenant Protection Act of 1974 (L 1974, ch 576, § 4 [ETPA]).
Second, regardless of whether or not respondents are precluded from obtaining IMD status for the building, they are rent-stabilized tenants who may be evicted only in accordance with the rent stabilization laws. The ETPA and the RSL are inclusive statutes. (Matter of Salvati v Eimicke, 72 NY2d 784, 790 [1988].) The ETPA sweeps within its ambit “all housing accommodations which it does not expressly except”. (Supra, at 791.) None of the statutory exemptions from the ETPA applies to the instant case. (See, McKinney’s Uncons Laws of NY §§ 8623, 8625 [ETPA §§ 3, 5].) The conduct and knowledge of petitioner’s predecessors in interest bind petitioner. (52 Riverside Realty Co. v Ebenhart, 119 AD2d 452, 453 [1st Dept 1986].) Moreover, petitioner’s current agent is the same person who has been extensively involved in the operation of the building since 1983.
The ETPA applies to residential, not commercial, units. (McKinney’s Uncons Laws of NY § 8625 [ETPA § 5].) A landlord, however, may not rent premises under a nominally commercial lease with knowledge that the tenants intend to convert the property to residential use, acquiesce in the conversion for 17 years, and seek to avoid protections afforded those tenants under the RSL and ETPA. (Metzendorf v 130 W. 57 Co., 132 AD2d 262, 265 [1st Dept 1987], citing Mandel v Pitkowsky, 102 Misc 2d 478, affd 76 AD2d 807.)
The ETPA also exempts from coverage housing accommodations in buildings substantially rehabilitated as family units on or after January 1, 1974. (McKinney’s Uncons Laws of NY § 8625 [a] [5] [ETPA § 5 (a) (5)].) Although the subject building was substantially rehabilitated as residential units in the
Based upon the rent-stabilized status of the subject apartments, petitioner’s motion for summary judgment is denied. Respondents’ cross motion for summary judgment is granted and the petition is dismissed. Petitioner’s ancillary application for use and occupancy is also denied. The dismissal of a holdover petition resulting in judgment in the tenant’s favor precludes a landlord’s recovery for rent or use and occupancy in the same proceeding. (Community League of W. 159th St. v Cesar, NYLJ, Apr. 21, 1989, at 21, col 6 [App Term, 1st Dept].) To the extent that any claim for rent arrears or use and occupancy remains viable, the landlord’s remedy is to pursue those claims in a separate action or proceeding.
Two of the proceedings, Tan Holding Corp. v Wallace (index No. L&T 075776/98) and Tan Holding Corp. v Eklund (index No. L&T 075777/98), were consolidated by a prior order of this court dated June 3, 1998. The third, Tan Holding Corp. v Dzurinko (index No. L&T 084716/98), was consolidated with the other two by stipulation dated July 21, 1998. As an addendum to the June 21, 1998 order of this court all three proceedings are now consolidated under index No. L&T 075776/98.