Offit, Fortgang & Komito v Moshlak (2004 NY Slip Op 51308(U))

Offit, Fortgang & Komito v Moshlak

2004 NY Slip Op 51308(U)

Decided on October 26, 2004

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This opinion is uncorrected and will not be published in the printed Official Reports.

OFFIT, FORTGANG & KOMITO, Petitioner-Landlord-Respondent,

against

DAVID MOSHLAK, 315 East 65th Street, Apt. 11E, New York, New York 10021, Respondent-Tenant-Appellant, FRED CAINS, KAREN AVAKIAN, Respondents-Undertenants- Appellants, -and- "JOHN DOE", Respondent-Undertenant.

Tenant David Moshlak and undertenants Fred Cains and Karen Avakian appeal from a final judgment of the Civil Court, New York County, entered June 2, 2003 (Maria Milin, J.) awarding possession to landlord upon a prior order of the same court dated May 22, 2003 (Dawn M. Jimenez, J.) granting landlord's motion for summary judgment in a holdover summary [*2]proceeding and from so much of a so-ordered stipulation dated July 11, 2003 (Peter M. Wendt, J.) awarding use and occupancy at the rate of $2,000 per month from June 1, 2001, through July 31, 2003.

Final judgment dated June 2, 2003 (Maria Milin, J.) modified by granting tenant a statutory 10-day stay period to correct the breach of lease (RPAPL § 753[4]); as modified, final judgment affirmed, without costs.

Appeal from a so-ordered stipulation dated July 11, 2003 (Peter M. Wendt, J.) dismissed, without costs, as nonappealable (Baechler v Baechler, 95 AD2d 841 [1983]).

In this holdover summary proceeding based on an illegal subletting, Civil Court properly granted summary relief to the landlord. The record establishes beyond factual dispute that tenant violated a substantial obligation of the tenancy by subletting this one bedroom apartment without landlord's written consent (Real Property Law § 226-b) and that tenant did not occupy the premises as his primary residence with the undertenants as "roommates" pursuant to Real Property Law § 235-f. Significantly, tenant conceded at his deposition that he does not concurrently reside in the subject premises with his two "roommates," spends the bulk of his time at his wife's two bedroom apartment on East 14th Street and never obtained landlord's written consent for the sublet.

However, since the holdover proceeding was premised upon a breach of lease and a 10-day notice to cure was served pursuant to Rent Stabilization Code [9 NYCRR] §2524.3(a), tenant must be afforded the remedy of a post judgment cure (see, RPAPL § 753[4]; Cutler v North Shore
Towers Assocs., 125 AD2d 532, 533 [1986]).

This constitutes the decision and order of the court.
Decision Date: October 26, 2004