GEMROSON REALTY CORP v. KADARKHAN (2001)

Order, Supreme Court, New York County (Louis York, J.), entered January 12, 2001, which, inter alia, denied plaintiff landlord's motion for summary judgment declaring the subject lease null and void, unanimously affirmed, with costs.

 Defendants reside in an apartment under a lease they entered into with plaintiff's predecessor providing for a 30-year term, a $600 monthly rent and an unlimited right to sublet. Plaintiff purchased the building at a foreclosure sale, and commenced the instant action after defendants refused to acknowledge that the lease is invalid. Upon plaintiff's motion for summary judgment, the IAS court properly voided the sublet provision as unlawful without voiding the rest of the lease (see, Rima 106 v. Alvarez, 257 A.D.2d 201, 690 N.Y.S.2d 40), and, insofar as the motion was based on a failure to record under Real Property Law § 291, properly held that an issue of fact exists as to whether plaintiff had notice of the lease when it purchased the building (see, Nethaway v. Bosch, 199 A.D.2d 654, 605 N.Y.S.2d 135). Certainly it would not be unreasonable to conclude that plaintiff should have inquired into the terms of the lease given a filing with the Division of Housing and Community Renewal indicating the apartment's rent-stabilized status and rent but not the beginning and ending dates of the lease. Plaintiff's claim that the lease was a fraudulent conveyance is improperly raised for the first time on appeal; in any event, defendants' assertion that, before moving in, they paid plaintiff's predecessor $10,000 to make needed repairs raises an issue of fact as to whether defendants paid fair consideration for the lease. We have considered plaintiff's other contentions and find them unavailing.