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Supreme Court, Appellate Term, New York.

Mohammed M. SAAD, Appellant, v. Margaret ELMUZA, Respondent.

Decided: May 17, 2006

Present:  GOLIA, J.P., RIOS and BELEN, JJ. Goldberg, Scudieri, Lindenberg & Block, P.C., New York City (Jennifer L. D'Ambrosio of counsel), for appellant. Domenick Napoletano, Brooklyn, for respondent.

Appeal from a final judgment of the Civil Court of the City of New York, Kings County (Marcia Sikowitz, J.), entered November 18, 2004.   The final judgment, after a nonjury trial, dismissed the petition with prejudice.

Final judgment affirmed without costs.

In this holdover proceeding based upon a 30-day notice terminating what landlord alleges to be a month-to-month tenancy, tenant claims that she is protected under rent control.   After trial, the court dismissed the petition, finding that tenant, who is currently in possession of the second-floor apartment, was in possession of the first-floor apartment prior to June 1, 1971 and that she retained her rent-controlled status when she relocated to the subject second-floor apartment at the request, and for the benefit, of the prior landlord.   The court further found that while tenant did not physically move into the first-floor apartment until August 1971, tenant had possession of that apartment since the end of May 1971, when she received the key to same in order to begin renovations therein.

 On appeal, landlord argues that no landlord-tenant relationship existed prior to the first payment of rent by tenant on October 1, 1971.   However, tenant's first landlord agreed, when he gave tenant the key to the subject apartment in May 1971, to forgo rent payments until all renovations were completed by tenant on the apartment.   Under these circumstances, a tenancy was created when possession and control were transferred to tenant in May 1971 (see Feder v. Caliguira, 8 N.Y.2d 400, 404, 208 N.Y.S.2d 970, 171 N.E.2d 316 [1960] ) and the aforementioned rent concession agreed to (see Matter of Century Operating Corp. v. Popolizio, 60 N.Y.2d 483, 470 N.Y.S.2d 346, 458 N.E.2d 805 [1983] ).

Apartments in buildings that were completed prior to February 1, 1947 and that contain three or more units “occupied or intended to be occupied” as residences (N.Y. City Rent and Rehabilitation Law [Administrative Code of City of N.Y.] § 26-403[e][1] ), which apartments have not become “vacant” since July 1, 1971, are subject to rent control (id. § 26-403[e][2][i][9];  N.Y. City Rent and Eviction Regulations [9 NYCRR] § 2200.2[f][17];  see Matter of Posalski v. State of New York Div. of Hous. & Community Renewal, Off. of Rent Admin., 291 A.D.2d 327, 737 N.Y.S.2d 853 [2002];  Kahana v. Gaeta, 8 Misc.3d 138(A), 2005 N.Y. Slip Op. 51313[U], 2005 WL 1981326 [App. Term, 2d & 11th Jud. Dists.] ). Under the circumstances presented herein, notwithstanding that the first-floor apartment could not be physically occupied at the time tenant received the key because it needed major renovations and was without major appliances including a refrigerator and stove, we agree with the court below that tenant was in possession of said apartment and that it was not “ vacant” on or after July 1, 1971.

 Landlord also argues that the first-floor apartment was not tenant's primary residence prior to July 1, 1971 and, therefore, that it was not subject to rent control.   However, the provision of the New York City Administrative Code exempting from control housing accommodations not occupied by the tenant as his or her primary residence (N.Y. City Rent and Rehabilitation Law [Administrative Code of City of N.Y.] § 26-403[e][2][i][10];  see Duell v. Condon, 84 N.Y.2d 773, 782, 622 N.Y.S.2d 891, 647 N.E.2d 96 [1995] ) was enacted in 1985 (L. 1985, ch. 907 § 1, eff. Sept. 1, 1986).   Prior to its effective date, a tenant's non-primary residence was merely the basis for an order of decontrol (former N.Y. City Rent and Eviction Regulations § 17, as amended eff. May 16, 1972).   As no order of decontrol was obtained, landlord's claim that the first-floor apartment was not subject to rent control because it was not tenant's primary residence on July 1, 1971 fails.

 Finally, we note that because tenant moved from her rent-controlled first-floor apartment into the second-floor apartment in 1978 at the prior landlord's request and for the prior landlord's convenience, her rent-controlled status transferred from the first-floor apartment to the second-floor apartment (see Matter of Capone v. Weaver, 6 N.Y.2d 307, 189 N.Y.S.2d 833, 160 N.E.2d 602 [1959] ).   Accordingly, the final judgment dismissing the petition is affirmed.

GOLIA, J.P., and RIOS, J., concur. BELEN, J., taking no part.