Park-Lex Associates, Petitioner-Landlord-Cross-Appellant, v. Fern M. Schad, Respondent-Tenant-Appellant, and Katherine Schad and Mark Mann, Respondents-Undertenants-Appellants. (2026)

Per Curiam.

Order (Shahabuddeen A. Ally, J.), dated December 1, 2025, insofar as appealed from, modified to deny petitioner's motion for summary judgment of possession against respondents Katherine Schad and Mark Mann; as modified, order affirmed, with $10 costs.

Summary judgment is unwarranted on this record because triable issues of fact exist as to the family member succession defense of respondent Katherine Schad, including when the rent-stabilized tenant (Katherine's mother) permanently vacated, and whether Katherine resided with her mother in the premises during the two-year period immediately preceding her mother's permanent vacatur (see Rent Stabilization Code [RSC] [9 NYCRR] § 2523.5 [b] [1]). The Mitchel-Lama succession rules cited by Civil Court are not applicable herein.

The current version of RSC § 2523.5 (b) (2) defines the permanent vacatur date as the date the tenant "permanently ceased residing" in the apartment (see 9 NYCRR § 2523.5 [b] [2]). This provision was implemented to address a "split" in authority between the First and Second Departments on how to determine the permanent vacatur date in situations where the tenant signs renewal leases and/or pays rent after moving out and to provide "clarity as to DHCR's intentions" (NY Reg, Aug. 31, 2022, HCR-35-22-00004-P). The rule is therefore remedial in nature (see Nelson v HSBC Bank USA, 87 AD3d 995, 998 [2011]), and should be liberally construed to carry out the reform intended and spread its beneficial effects as widely as possible (see Post v 120 E. End Ave. Corp., 62 NY2d 19, 24 [1984]). Therefore, it is properly applied in this pending proceeding (see Lesser v Park 65 Realty Corp., 140 AD2d 169, 173 [1988], app denied 72 NY2d 1042 [1988]; McKinney's Consolidated Laws of NY, Book 1, Statutes § 54).

Given our disposition, petitioner's request for fair market use and occupancy is denied as academic.

We have considered the parties' remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur

Decision Date: October 1, 2026