| M & E Christopher LLC v Godfrey |
| 2016 NY Slip Op 50229(U) [50 Misc 3d 143(A)] |
| Decided on February 25, 2016 |
| Appellate Term, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Landlord appeals from an order of the Civil Court of the City of New York, New York County (Peter M. Wendt, J.), entered June 15, 2015, which granted tenant's motion for summary judgment dismissing the petition and denied landlord's cross motion for partial summary judgment in a holdover summary proceeding.
Per Curiam.
Order (Peter M. Wendt, J.), entered June 15, 2015, affirmed, with $10 costs.
This holdover proceeding, based upon allegations that tenant's right to occupy the unregulated apartment expired upon the termination of his monthly tenancy, was correctly dismissed on tenant's summary judgment motion. The record establishes, and landlord conceded at oral argument, that the apartment is subject to rent stabilization. The former version of Rent Stabilization Code (9 NYCRR) § 2526.1(a)(3)(iii), previously relied upon by landlord, does not support a finding that the apartment was deregulated. The language of that section "necessarily presumes that the first tenant after a vacancy [or temporary exemption] is offered a rent stabilized lease" (Gordon v 305 Riverside Corp., 93 AD3d 590, 592 [2012]), a contingency which was not satisfied here (see also Goldman v Malagic, 45 Misc 37, 39-40 [App Term, 1st Dept 2014]), since the lease tendered by landlord after the expiration of the temporary exemption - tenant's initial, March 21, 2005, lease - explicitly stated that the apartment was not subject to rent regulation (see also Goldman v Malagic, 45 Misc 3d 37, 39-40 [App Term, 1st Dept 2014]).
Inasmuch as landlord has not established as a matter of law that the base date rent should [*2]be $2,250, the market rate in the lease in effect on October 12, 2008, its cross motion for summary judgment dismissing the rent overcharge counterclaim was properly denied (see Gordon 93 AD3d at 593). We note, however, that nothing herein shall preclude landlord from establishing at trial that the base date rent is a legal rent (see Matter of Ogunrinde v New York State Div. of Hous. & Community Renewal, 2010 NY Slip Op 33350[U] [Sup Ct, NY County 2010, Gische, J.], affd 110 AD3d 441 [2013]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.