GREENE STREET ASSOCIATES v. “John Doe”, et al., Defendants. (1998)

Order, Supreme Court, New York County (Leland DeGrasse, J.), entered March 30, 1998, which, in an action for ejectment, insofar as appealed from, granted plaintiff landlord's motion for use and occupancy in the amount of $2500 a month from the date the action was commenced, and denied defendants tenants' cross motion for summary judgment dismissing the complaint, unanimously modified, on the law and the facts, to vacate the award of $2500 a month, award use and occupancy in the amount of the current regulated rent for the unit in question and remand for a determination of such current regulated rent, and otherwise affirmed, without costs.

 Use and occupancy should not be for more than the regulated rent because, plaintiff landlord having filed the requisite certificate of occupancy pursuant to Multiple Dwelling Law § 286 and otherwise “legalized” this loft building pursuant to article 7-C of the Multiple Dwelling Law, defendants tenants are protected by the Rent Stabilization Law (Multiple Dwelling Law § 286[3], [13];  see, Axelrod v. French, 148 Misc.2d 42, 559 N.Y.S.2d 918).   The tenants' refusal to execute what was the first, authorized rent stabilized lease offered by the landlord constituted a ground for commencing eviction proceedings (cf., Rent Stabilization Code [9 NYCRR] § 2524.3[f];  923 Fifth Ave. Assocs. v. Eisenberg, 191 A.D.2d 396, 595 N.Y.S.2d 435, appeal dismissed 82 N.Y.2d 802, 604 N.Y.S.2d 559, 624 N.E.2d 697), without need for first serving a notice to cure (see, Childress v. Lipkis, 72 A.D.2d 724, 443 N.Y.S.2d 63;  Carriage House Realty Co. v. Conlon, 128 Misc.2d 143, 487 N.Y.S.2d 971, 493 N.Y.S.2d 687).   While an issue of fact exists as to whether the landlord waived its right to recover possession by allowing the tenants to remain in occupancy without a written lease while continuing to accept rent at the registered rate for nearly 18 months before seeking to terminate the tenancy (see, Lee v. Wright, 108 A.D.2d 678, 485 N.Y.S.2d 543), the issue appears to be of little consequence, if not entirely academic, since any right of possession by the landlord would in any event be subject to the tenants' right to cure pursuant to RPAPL § 753(4) (see, 923 Fifth Ave. Assocs. v. Eisenberg, supra;  accord, Fairbanks Gardens Co. v. Gandhi, 168 Misc.2d 128, 645 N.Y.S.2d 262, affd., 244 A.D.2d 315, 665 N.Y.S.2d 540;  cf., 67 8th Ave. Assocs. v. Hochstadt, 88 A.D.2d 843, 451 N.Y.S.2d 408).

MEMORANDUM DECISION.