388 BROADWAY OWNERS LLC v. “John Doe” and “Jane Doe,” Respondents–Undertenants. (2018)

Final judgment (Jack Stoller, J.), entered on or about October 16, 2017, affirmed, with $25 costs.

We find no cause to disturb the trial court's fact-laden determination that appellant-undertenant Mario Bosquez failed to prove his illusory tenancy defense. The trial evidence, fairly interpreted, supports the finding that undertenant never represented himself as anything other than a roommate of the prime tenant (Elizabeth Salaway); neither tenant nor undertenant ever notified landlord that tenant had vacated, and rent was continuously paid by check from an account bearing tenant's name (see 68–74 Thompson Realty, LLC v. Heard, 54 Misc 3d 144[A], 2017 NY Slip Op 50238[U][App Term, 1st Dept 2017]; Square Block Assoc., Inc. v. Fernandez, 29 Misc 3d 138[A], 2010 NY Slip Op 52040[U] [App Term, 1st Dept 2010] ). The evidence also supports the court's express finding that landlord did not have actual or constructive knowledge of tenant's arrangement with undertenant (see Primrose Mgt. Co. v. Donahoe, 253 AD2d 404 [1998] ). Nor did landlord derive any benefit from tenant's conduct.

In addition, while tenant engaged in profiteering, she refunded the overcharges to undertenant. Accordingly, there is no basis to confer independent tenancy rights upon undertenant in the circumstances described.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Per Curiam.