Landlord appeals from 1) that portion of a final judgment of the Civil Court of the City of New York, New York County (Laurie L. Lau, J.), entered on or about December 18, 2006, after a nonjury trial, which permanently stayed execution of the warrant of eviction in a holdover summary proceeding, and 2) an order (same court and Judge), dated March 23, 2007, which denied its motion to "modify[ ]" the aforesaid final judgment to afford tenant a 10-day period to correct the breach of lease, including the removal of tenant's son, and failing same, for "execution of the warrant forthwith thereafter." Tenant, as limited by her brief, purports to cross-appeal from that portion of the March 23, 2007 order which stated that "respondent[-tenant] sublet some or all of the apartment to various individuals" and denied her cross motion for attorney's fees.

Per Curiam.

Final judgment (Laurie L. Lau, J.), entered on or about December 18, 2006, and order (Laurie L. Lau, J.), dated March 23, 2007, insofar as appealed from, affirmed, with one bill of $25 costs.

The undisputed trial evidence showed that each of the apartment occupants complained of — with the sole exception of tenant's adult son, who was raised in the apartment — vacated the premises prior to the close of trial. In this posture, and since the arrangement between tenant and her son has more of the indicia of a licensee or guest relationship, as opposed to a sublet prohibited under Real Property Law § 226-b (see generally 445/86 Owners Corp. v Haydon, 300 AD2d 87, 88-89 [2002]), a permanent stay of execution of the warrant of eviction was properly issued below. To the extent that landlord's proof points to the alleged absence of [*2]the long-term stabilized tenant, that claim is more properly made the subject of a holdover proceeding based upon nonprimary residence grounds (see PLWJ Realty, Inc. v Gonzalez, 285 AD2d 370 [2001]; Park Holding Co. v Rosen, 241 AD2d 304 [1997]).

We sustain the denial of tenant's application for counsel fees, where tenant's breach of lease through her authorized subletting to several non-family members, albeit ultimately cured, was firmly established at trial (see Ram I, L.L.C. v Stuart, 248 AD2d 255 [1998]). Having failed to appeal from the underlying final judgment, tenant may not now be heard to challenge the sufficiency of the landlord's trial proof insofar as it related to the subletting issue (see 433 W. Assoc. v Murdock, 276 AD2d 360, 361 [2000]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: March 31, 2009