45TH STREET ASSOCIATES v. SPENCE

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Supreme Court, Appellate Term, New York.

45TH STREET ASSOCIATES, Respondent, v. Jean SPENCE, Also Known as Jean S. Eubank, Appellant, et al., Respondents.  (And Another Proceeding.)

Decided: February 24, 1999

PRESENT:  STANLEY PARNESS, P.J., WILLIAM P. McCOOE and WILLIAM J. DAVIS, Justices. Edwin L. Eubank, New York City, for appellant. Borah, Goldstein, Altschuler & Schwartz, P. C., New York City (Steven L. Schultz of counsel), for 45th Street Associates, respondent.

Orders dated March 25, 1998 (Faviola A. Soto, J.) and April 10, 1998 (Dianne T. Renwick, J.) affirmed, with $10 costs.

 The objective evidence in the record establishes beyond dispute that tenant was absent from and did not occupy the subject rent stabilized apartment premises for actual living purposes during the most recent renewal term which expired May 31, 1997.   Numerous documents-including leases and lease applications signed by tenant, a verified complaint in a federal lawsuit, and an application for a business loan-demonstrate that tenant and her husband principally resided at various addresses in New Jersey and Pennsylvania during the period in question.   Tenant's attempt to “re-establish” her residence in the Manhattan apartment by returning in May 1997, at the end of the lease term and months after service of the notice of nonrenewal, is unavailing (Berwick Land Corp. v. Mucelli, 249 A.D.2d 18, 671 N.Y.S.2d 44).   Similarly, tenant's purported “cure” of her nonprimary residence pursuant to RPAPL § 753 is without basis.   This holdover proceeding is not premised upon a breach of lease, but upon a statutory exemption for nonrenewal of the lease.  “It was ․ not the intent of the Legislature, in exempting apartments not used as a primary residence, to give the nonprimary tenant the opportunity to periodically pose as a primary resident, only to conveniently revert to the status of a nonprimary resident during the overwhelming balance of the lease term” (Lufkin v. Drago, 126 Misc.2d 177, 179, 481 N.Y.S.2d 850 affd. 129 Misc.2d 1108, 498 N.Y.S.2d 334;  Matter of Stahl Associates Co. v. DHCR, 148 A.D.2d 258, 542 N.Y.S.2d 982).

The notice of nonrenewal, measured against the standard of reasonableness, fairly apprised tenant of the facts underlying the proceeding (Hughes v. Lenox Hill Hospital, 226 A.D.2d 4, 18, 651 N.Y.S.2d 418).   We have considered tenant's remaining points and find them without merit.

PER CURIAM.