Supreme Court, Appellate Term, First Department, September 28, 2023

200 Haven Owner, LLC v Drachman, 73 Misc 3d 1207(A), 2021 NY Slip Op 50970(U), affirmed.

Kucker Marino Winiarsky & Bittens, LLP, New York City (Vladimir K. Favilukis of counsel), for appellant.

Mobilization for Justice, New York City (Michael Pereira of counsel), for respondent.

Order (Eleanora Ofshtein, J.), dated September 28, 2021, insofar as appealed, affirmed, with $10 costs.

Civil Court properly granted tenant's motion for partial summary judgment dismissing the holdover petition. The undisputed evidence establishes that tenant Chen Drachman initially took possession of the apartment premises in 2013, pursuant to a rent-stabilized lease signed by her and her then-cotenant, Noy Sossover. When Sossover moved out in late 2014, tenant asked landlord to add her new roommate (Zahavi) as cotenant. In response, landlord issued an eight-month lease naming tenant and Zahavi as cotenants, with the same preferential rent and expiration date (Aug. 2015) as the existing lease. The new lease, however, was not rent-stabilized. Landlord took the position that the addition of a new cotenant permitted it to take a lawful vacancy increase on the rent, which qualified the apartment for high rent deregulation because the legal regulated rent then exceeded $2,500.

Contrary to landlord's argument, the apartment did not become exempt from regulation under the "high rent" deregulation provisions of the Rent Stabilization Law then in effect. Those rules provided that high rent deregulation occurred when a housing accommodation "is or becomes vacant" and the legal rent reached the deregulation threshold. Since the tenant remained in continuous possession of the premises as a named tenant since 2013, there was no "actual physical vacancy" or "hiatus in possession" so as to trigger deregulation (Matter of Ghignone v Joy, 55 NY2d 853, 855 [1982]; 132132 LLC v Strasser, 19 Misc 3d 658, 660 [Civ Ct, NY County 2008], affd as mod 24 Misc 3d 140[A], 2009 NY Slip Op 51694[U] [App Term, 1st Dept 2009]; see Matter of Hoy v State of N.Y. Div. of Hous. & Community Renewal, 233 AD2d 120 [1st Dept 1996]). While landlord may have qualified for a vacancy increase or allowance{**80 Misc 3d at 18} based on the addition of Zahavi as cotenant, "any such eligibility would not have served to automatically exempt the apartment from regulation" (132132 LLC v Strasser, 24 Misc 3d 140[A], 2009 NY Slip Op 51694[U], *1-2).

Landlord's legal citations do not mandate a contrary result, since the tenant here was named in a prior lease, remained in continuous possession, and was again named cotenant in the new lease (compare Matter of Gavrielov v Unger Consulting Group Ltd., 173 AD3d 443 [1st Dept 2019] [an actual vacancy and new tenancy resulting in deregulation of apartment occurred when a renewal lease was executed that omitted, as the tenant, the party who was a continuous occupant, and named a different entity as the tenant], and Altman v 285 W. Fourth LLC, 31 NY3d 178 [2018] [an actual vacancy occurred when the rent-stabilized tenant vacated and a new lease was issued to a subtenant not named as a cotenant in a prior lease]).

We reach no other issue.

Hagler, P.J., Brigantti and James, JJ., concur.