The court ruled that the landlord did not set forth ample need to grant discovery and so denied the landlord's motion. The court noted that the information regarding the tenants that the landlord sought to discover should be within the knowledge of the landlord directly.

The tenants first argued that service was defective and thus, the proceeding should be dismissed. Tenant alleges that "the process server failed to effectuate personal or substituted service of the petition and notice of petition prior to defective conspicuous place service." The court rejected this argument, noting that without any additional detail, the tenants' general allegation that service was defective is not sufficient to grant summary judgment.

The tenants second argument was that they were rent stabilized tenants whose tenancy cannot be terminated by a thirty day notice. The tenants argued that they had resided in the landlord's hotel in excess of six months. The tenants relied on the Rent Stabilization Code 2520.11(f) which provides for coverage by the Code of individuals not affiliated with, but renting from non-profit institutions. The tenants further argued that the landlord is operatng as a "for profit corporation" and therefore cannot benefit from the exemption of 2520.11(f). The landlord argued that although the Hotel is operating as a for profit corporation, that is irrelevant as it is the institution, the Holy Spirit Association, and not the building that is the significant factor. Further, the landlord argued that a condition of residency in the subject premises requires the tenant to be a member in good standing of the Church and the tenants have no right to remain in the premises because they are no longer members in good standing. The court ruled that the conflicting allegations and documentation submitted raised disputed issues of fact which require resolution at trial and thus, denied the tenants' cross-motions for summary judgment.

The court also examined tenant-Coffey's argument that the petition fails to name a necessary party, his wife Tatiana Mikhailenko. The court ruled that Ms. Mikhailenko's allegations that she is in and out of the apartment during the day and friendly with the hotel staff was insufficient to persuade the court that she was a necessary party. The court also noted that the naming and subsequent service of the petition on "Jane Doe" as a respondent, was sufficient to give Ms. Mikhailenko notice of the holdover proceeding to the extent that she resides in the apartment. Thus, the court denied this basis for tenant-Coffey's motion for summary judgment.

The landlord first argued that the tenant's use of the rooftop as a terrace is a violation of her lease. The court noted that it was uncontested that the tenant used the rooftop as a terrace openly and notoriously for twenty years, and in all these years the landlord continued to accept rent from the tenant. Thus, the court ruled that the landlord had knowingly waived any right she might otherwise have had to object at this point. Next, the landlord argued that the tenant's use of the terrace constituted a nuisance. The court rejected this argument noting that the landlord did not contend that the tenant's use of the terrace over the course of twenty years has caused any actual harm to the landlord or to other residents of the building, nor that any such harm is imminent, as opposed to theoretical. Lastly, the landlord argued that the tenant's use of the rooftop as a terrace is a violation of law. The court noted that the landlord has not established that the tenant has been subjected to any penalty for the alleged illegal use, nor that the use of the rooftop as a terrace cannot be made legal and rejected this argument. Thus, the court ruled that the tenant's motion for summary judgment is granted and the petition is dismissed on the merits.

The dissent argued that the branches of landlord's motion which sought a final judgment and warrant of eviction should have been granted. The tenant admitted in a stipulation that the rent arrears totalled $2,222.25 and failed to make any payments. The tenant did not submit opposition papers or appear in court to oppose landlord's motion. The dissent believes that, having conceded the amount owed under the stipulation and having failed to make any payments, the tenant's failure to oppose landlord's motion was a concession that she had no defense and landlord was entitled to such relief.

The appeals from the intermediate decisions were dismissed because any right of direct appeal from the intermediate orders terminated with the entry of the final judgment. The tenant argued that the landlord's commencement of a nonpayment proceeding to recover the rent arrears accruing during the probationary period, in which prosecution of this holdover proceeding was suspended pursuant to a stipulation, evinced an intent to revive the tenancy and vitiated the notice of termination. The court, in rejecting the tenant's argument, noted that almost contemporaneously with the commencement of the nonpayment proceeding, landlord moved to reinstate the holdover proceeding and as the creation of a tenancy is ultimately a matter of intent, it could not be said in the circumstances of this case that the landlord's commencement of the nonpayment proceeding evidenced an intent to reinstate the tenancy.

The tenant next argued that landlord's service of the notice to cure required by section 2524.3(a) of the Rent Stabilization Code for the maintenance of a holdover proceeding based upon a violation of a substantial obligation of the lease required that tenant be afforded either a pre-termination or post-judgment cure period for the nuisance ground sued upon by landlord in the alternative. The court noted that the evidence established a pattern of continuity or recurrence of objectionable conduct which began long before the termination of the tenancy and continued throughout the probationary period and up through the time of trial, no further opportunities were either required or warranted and rejected the tenant's argument.

The court noted that by the December, 1997 Order and the tenant's payment of $1.00 per month rent, the tenant's rent stabilized tenancy rights in her apartment were preserved. The question now is the extent of such rights. The tenant argued that all of her rights under the rent stabilization laws, including the right to a base rent set at the rate under her lease before the fire, were preserved. The landlord argued that because the building rehabilitation resulted in the elimination of plaintiff's apartment, her rent stabilization rights are limited to, in essence, a "right of first refusal" to a newly reconfigured apartment whose base rent would be set at "first rent" or market rent. The DHCR concurred with the landlord's argument. The landlord did not claim any increase in dwelling space or services, nor does it contend that it obtained written consent from the tenant or gave prior notice to her, which are required for individual apartment improvement or major capital improvement (MCI) increases under the Rent Stabilization Laws.

The DHCR Operation Bulletin 95-2 establishes an administrative policy for the imposition of "first rent." The court noted that under the Bulletin the tenant clearly has a right to a rent stabilized apartment. What the Bulletin failed to clearly provide is what base rent may be charged upon the tenant's physical restoration to possession. The court noted that the Bulletin used precatory language by saying upon a finding that the renovations result in accommodations which were not in existence on the applicable base date, this finding "may entitle the owner to charge a market 'first rent' subject to the guideline limitations for future adjustments." (emphasis supplied.) The court ruled that on the facts of the case at bar, not only would it have been rational for DHCR to have declined to make such a finding as to the subject apartment, but also it was in fact arbitrary and capricious for the Rent Administrator not to have declined to make such a finding.

The tenant filed an Article 78 and the Supreme Court noted that the DHCR's Rent Order restoring the tenant to the subject apartment on payment of $1.00 per month was in contradiction with its finding on July 1, 1999, that despite such payments, she was not to be restored to physical occupancy of the subject apartment, because such apartment no longer existed. Thus, the DHCR's determination, dated January 9, 2002, that affirmed that the landlord is entitled to a "first rent" is vacated and denied.

The landlord testified that the only true and actual living space available to him and his son is Apartment 2, which only has 1 bedroom used by his son while he sleeps on the couch. The landlord stated he has the use of Apartment 1, which functions as his office and study. The landlord claims that Apartment 1, while it does have residential features, is not considered a part of his living space because he does not want to live and work in the same space. Kathleen Atkinson, the superintendent of the building, occupies Apartment 4. According to the landlord, Ms. Atkinson shares a close and loving relationship with him and he regularly sleeps in her apartment and keeps his clothes in her apartment. The landlord testified that he needed to recover the tenant's apartment so that his son could have his own living space to entertain his friends, practice his martial arts, lift weights, and for appropriate privacy; and that recovery of Apartment 5 was the only means possible to allow him to accomplish his goal of providing his son adequate space to meet his needs.

The court ruled that the landlord's claim that his present circumstances compel him and his son to live in a cramped 1 bedroom apartment is not credible. First, the landlord had both Apartments 1 and 2 available to him to use. Second, there were two rooms, one each under Apartments 1 and 2 that were used for storage and recreation, that were available to the landlord to use. Third, the landlord conceded he slept on an average of 80% or more of the time in Apartment 4, occupied by Ms. Atkinson, in contradiction of his claim that he was merely an occasional guest in that apartment. Fourth, there was evidence of a pattern of the landlord commencing owner occupancy proceedings which were all dismissed. Fifth, there was evidence that established a pattern of contradictory sworn statements regarding where he resided. Sixth, the tenant introduced evidence which indicates that the landlord is the tenant of record of a rent controlled apartment located at 601 West 115th Street in contradiction of the landlord's claim that there was no other apartment available to him.

There was also evidence of a history of bad feelings between the parties. During a prior proceeding commenced by the landlord against the tenant in 1997, the landlord threatened that, as soon as the tenant's lease expired, he would bring an owner occupancy proceeding on behalf of his son, who in 1997 was 14 years old. The court noted that the existence of bad feelings alone can in certain circumstances be sufficient to negate good faith.

The court dismissed the petition based on the landlord's lack of credibility measured along with the history of ill feelings between the parties.

The court first noted that these legal proceedings would not have occurred if the landlord had simply complied with the law: issued tenants a renewal lease, returned their excess security deposit, and refunded their rent overcharge. The court also noted that the landlord willfully did not provide tenants with the renewal lease, as the CAB order had provided for, for 13 years, nor the excess security deposit before Judge Dankberg's 1995 decision, and has yet to refund their rent overcharge despite a CAB order. Based on these facts, the court dismissed the landlord's complaints and removed the counterclaims of the tenants to Civil Court, County of New York.

The court noted that Hon. Debra Samuels had already ruled, by Decision and Order dated December 29, 1999, that restoration was appropriate at that time. Thus, only the second off calendar period, from February, 2000 until this motion in March, 2002 is before this court for consideration at this time.

The court listed several important facts which weighed heavily in its decision. First, the landlord has made a prima facie showing that it has a meritorious claim in the case that tenants are licensees whose license has expired. Second, the landlord has established a reasonable excuse for its delay in restoring the proceeding to the calendar: to wit, the landlord was preoccupied with the subpoena and sanctions issue. Third, the tenants have not suffered so much prejudice as to bar continued litigation, despite the death of a witness for the tenants who had died while the case was pending. Fourth, the landlord took many steps during the period that the case was off the trial calendar to demonstrate that it had no intention of abandoning the proceeding. For these reasons, the court granted the landlord's motion to restore the proceeding to the calendar for trial and denied the tenants' motion to dismiss.

Last year the landlord sought to avail itself of current caselaw, which had made clear that similar leases were invalid, and moved by order to show cause to vacate the consent judgment and rescind the tenant's lease. The tenant cross moved for a declaration on public policy grounds that the lease is void only insofar as it prohibited subleasing and that it is otherwise valid. The court stated the public policy is to preserve a moderate-priced housing stock in New York City based on the legislature's finding of an emergency shortage which exists up to the present. The court noted that this policy must be accorded primacy in the present dispute and that to permit the enforcement of this lease agreement would essentially allow any landlord to evade rent regulations by the mere expedient of a private agreement. This may work for the landlord and, as in this case, even for the tenant, but it does not work for New York City's compelling need to control the availability of affordable housing stock.

The court ruled that the 1988 consent judgment purporting to recognize and validate the non-primary residence status of the subject apartment is vacated. The landlord articulated a willingness to enter a rent stabilized lease with the tenant predicated, though, on his maintaining a primary residence in that apartment. In that case, the rent for any renewal lease for this unit must be set in the amount of the legal stabilized rent at the time the parties entered into the initial lease ($1,035).

The court ruled that the tenant was justified in rejecting the landlord's proposed lease and is not subject to eviction for her failure to sign it. The court granted the tenant's cross-motion to dismiss and remanded for an assessment of her reasonable attorneys' fees incurred by her in defense of the action.

Tenant claims that he had an unwritten understanding with the prior landlord that he would pay rent as he could but the former owner would tolerate late payments because the tenant is a writer who is not paid a regular periodic salary. He claims the prior owner also knew that he was ill and needed to attend to medical payments The tenant submits that he is currently employed and in addition to his writing he will receive a regular salary. He also claims that his health has improved and he is now eligible for insurance.

Landlord has moved for summary judgment, asking the court to grant a possessory judgment based on the fact that appellate decisions have held that a chronic nonpayment situation is non-curable, citing 326-220 East 35th Street v. Sofizade , New York Law Journal, April 10, 2002, 18:1 (Appellate Term, First Department). Tenant cross-moves and asks the court to dismiss the petition because the landlord did not serve a notice to cure the alleged violation.

The court acknowledged the Sofizade ruling that it is not possible to prove a meaningful cure in a 10 day period. However, the court noted that the decision also ruled that "there may be circumstances warranting the issuance of a stay of a possessory judgment 'upon such terms as may be just' (CPLR 2201) in order to avoid a leasehold forfeiture in this type of eviction proceeding." The court awarded the landlord summary judgment but set the matter down for a hearing to determine the length of an appropriate stay and upon what terms it should be conditioned. The court found circumstances warranting a stay; i.e., tenant's medical situation and former unemployment. The court is basically giving the tenant a probationary period.

The landlord argued that its knowledge is immaterial, that the tenants are not qualified for any protections afforded to residential occupancy regardless of the owner's knowledge or acquiescence. The court noted that the landlord's argument would allow an unscrupulous landlord to perpetuate a fraud on an unsuspecting tenant or tenants and hide behind the law in the process of doing so and second, that the case law does not support his argument.

The tenants argued that the doctrine of collateral estoppel has already decided the issue of whether or not the building is a de fact multiple dwelling. The landlord brought a superintendent to court in a holdover proceeding and the trial court found that the building contained more than 6 residential units. Therefore, this court is bound to comport with that prior ruling. The court, however, ruled that the doctrine of collateral estoppel only precludes findings of fact essential to the final judgment and that the holdover involving the super had been dismissed on appeal on a different basis and the appelate court actually never reached the issue of whether or not the building is a de facto multiple dwelling. The court rejected the tenant's application for legal fees and sanctions as well since the landlord's arguments, although unpersuasive, had a modicum of basis in fact and law.

The tenant moved for summary judgment to dismiss the proceeding claiming that the Rent Stabilization Law contains not ground for a landlord of a hotel tenant to terminate her tenancy based on her refusal to sign a lease offered to her, even if she requested a lease. The court examined the Code and ruled that there is no existing ground to evict a permanent rent stabilized hotel tenant for failure to execute a lease tendered by the owner even if the tenant requested it. Thus, the court dismissed the proceeding.

Despite having the studio, the tenant sublet 128 Central Park South from 1996 to 1998. He paid all of the expenses for this sublet including rent, Con Ed, cable television, and telephone. On the sublet application, he listed Katia Christine as his live-in companion of 12 years. The tenant claimed that he used 128 Central Park South for his girlfriend Christine and that, although he spent a great deal of time with her, he in fact returned to his studio apartment on most nights to sleep. David Hay, an individual who worked with the tenant, testified that he met the tenant and called him at the studio for business purposes. He also testified that he would take in the tenant's mail for him at the studio when the tenant was out of town. The superintendent of the subject premises, Mr. Gordocki, testified that he would see the tenant enter the building after 9:00 A.M. on a regular basis, rather than leaving the building in the morning.

The court granted the landlord a final judgment of possession concluding that the tenant maintained his primary residence at a location other than the subject apartment. The court first noted that the tenant had previously entered into an agreement which did not require him to occupy the subject apartment as his primary residence. The court noted that in the tenant's deposition testimony, he said he slept at the 128 Central Park South sublet "very often" which contradicted his trial testimony that he slept at the subject premises on "most nights." The court noted that it was logical to conclude that the tenant and his live-in companion would actually reside in the luxury two bedroom sublet facing Central Park rather than the subject premises, which was only a small studio facing the rear of the building. The court also noted that the evidence and the testimony of Mr. Hay and Mr. Gordocki showed that although the tenant did maintain a connection to the subject premises, he appeared to be using it more as an office rather than a primary residence.

The landlord moved for an Order restoring the non-payment proceeding to the calendar. The tenant cross-moved for an Order impleading HRA as a necessary party and for vacatur of the previous stipulation of settlement. The court granted landlord's motion to restore the proceeding to the calendar, noting that the landlord has not received the money. The court granted the tenant's motion to implead HRA, noting that HRA only had to add a single word to the landlord's address and it was the only party to perform this task. Finally, the court denied the tenant's motion to vacate the stipulation, noting that she was represented by counsel and clearly understood the import and impact of the terms of the agreement before committing herself to its terms.

The court rejected the landlord's argument that the residential character of the building was destroyed. The court noted that there was no difference between a family that contained five children living in an apartment and a single person who cared for five children during the day. The court also rejected the landlord's argument that the use of the apartment for child care is a violation of a restrictive covenant in the lease. The court noted that this does not in and of itself constitute a lease violation when a lease provision prohibits such use. A landlord may go forward on the claimed breach of lease, but once a tenant demonstrates that they are either licensed, registered, or otherwise in compliance with the law, the burden must shift to the landlord, and the burden is more than the mere fact that a tenant cares for children in the apartment, there must be something more. Since the tenant, however, failed to allege compliance with any aspect of the regulatory scheme that governs home based child care she is not entitled to a dismissal on the motion and the matter is reserved for trial, with the burden resting on the tenant to demonstrate her compliance with the statute.