270 RIVERSIDE DRIVE INC v. Simone Marx, Allison Adair, “John Doe” and “Jane Doe”, Respondents-Undertenants-Occupants. (2004)

Order dated November 21, 2002 (Dawn M. Jimenez, J.) affirmed, with $10 costs.

Appeal from order dated June 28, 2002 (Dawn M. Jimenez, J.) dismissed, without costs, as academic.

Landlord sought possession of the subject four bedroom rent controlled apartment on the ground that the tenant engaged in profiteering by collecting rent from two roommates in the aggregate sum of $1,270, in excess of the legal regulated rent of $1,192.   On the undisputed record evidence, including tenant's previous deposition supplied by landlord, Civil Court correctly decided that a cause of action for eviction could not be proven.   As landlord concedes, there is no provision in the rent control regulations equivalent to Rent Stabilization Code [9 NYCRR] § 2525.7, which prohibits charging a roommate a disproportionate share of the legal rent.   Nor, more critically, do the regulations provide for eviction proceedings without a certificate on this ground (see N.Y. City Rent and Eviction Regulations [9 NYCRR] § 2204.2).   DHCR's omission from the rent control regulations of a requirement for proportionate rental contributions among roommates cannot be disregarded as mere oversight (see Sullivan v. Brevard Associates, 66 N.Y.2d 489, 493-494, 498 N.Y.S.2d 96, 488 N.E.2d 1208), particularly since the addition of section 2525.7 to the Code on or about December 20, 2000 was part of a comprehensive revision of the four rent codes promulgated by the agency.  “[W]e may not rectify any perceived omission of such a provision by providing one by implication” (518 West 134th Street Tenants Assoc. v. Calderon, 181 Misc.2d 216, 217, 694 N.Y.S.2d 890;  see Pajak v. Pajak, 56 N.Y.2d 394, 397-398, 452 N.Y.S.2d 381, 437 N.E.2d 1138).

While the remedy of termination of a tenancy has been recognized where profiteering tenants sublease apartments covered under rent control (see BLF Realty Holding Corp. v. Kasher, 299 A.D.2d 87, 91, 747 N.Y.S.2d 457, citing Hurst v. Miske, 133 Misc.2d 362, 505 N.Y.S.2d 984), tenant's actions here partake of apartment sharing arrangements.   The restrictions against profiteering in sublet situations have traditionally not been applied to living arrangements involving roommates (see 520 East 81st Street Associates v. Roughton-Hester, 157 A.D.2d 199, 203, 555 N.Y.S.2d 70). Indeed, until enactment of section 2525.7 of the Code, it was the firm rule in this Department that “[t]here is no cause of action for rent profiteering with respect to a roommate” (Handwerker v. Ensley, 261 A.D.2d 190, 191, 690 N.Y.S.2d 54).   In light of this history, if the charging of a disproportionate rental amount in these circumstances is to furnish the basis for an eviction, the governing regulations should affirmatively so state.

To the extent landlord relies upon BLF Holding v. Kasher, supra, as authority for this proceeding, that case is both legally and factually distinguishable in that it addresses the interplay between the Loft Law and the Rent Stabilization Law, and concerned a tenant who subdivided and sublet his loft space.

Finally, even assuming that the remedy of eviction is available in this case, we would hold that tenant's conduct did not rise to the level of an incurable violation warranting forfeiture of the tenancy (cf. Continental Towers Ltd. v. Freuman, 128 Misc.2d 680, 494 N.Y.S.2d 595).

This constitutes the decision and order of the court.

PER CURIAM.