Continental Towers Ltd. Partnership v. Freuman

• Decision Date: 21 March 1985
• Citation: 128 Misc.2d 680,494 N.Y.S.2d 595
• Parties: CONTINENTAL TOWERS LIMITED PARTNERSHIP, Petitioner-Landlord-Appellant-Respondent, v. Dr. Henry FREUMAN, Respondent-Tenant-Respondent-Cross-Appellant, and Gini Smythe, Respondent-Undertenant.
• Court: New York Supreme Court — Appellate Term

Page 595

494 N.Y.S.2d 595

128 Misc.2d 680

CONTINENTAL TOWERS LIMITED PARTNERSHIP Petitioner-Landlord-Appellant-Respondent, v. Dr. Henry FREUMAN, Respondent-Tenant-Respondent-Cross-Appellant and Gini Smythe, Respondent-Undertenant.

Supreme Court, Appellate Term First Department.

March 21, 1985.

Kurzman Karelsen & Frank, New York City, (Phyllis H. Weisberg and Terri A. Siegel of counsel), for petitioner-landlord-appellant-respondent.

Bragar & Wexler, New York City, (Raymond A. Bragar of counsel), for respondent-tenant-respondent-cross-appellant.

Before DUDLEY, P.J., and RICCOBONO and SANDIFER, JJ.

PER CURIAM:

Final judgment entered January 24, 1984 (Brandveen, H.J.) modified by striking the provision staying the warrant of eviction and, as modified, affirmed, with $25 costs to the appellant.

Order dated October 17, 1983 (Brandveen, H.J.) affirmed, without costs.

Tenant, a rent stabilized occupant at premises 301 East 79th Street, Manhattan, obtained permission from his landlord to sublease the subject furnished apartment for the period July 1, 1982 through December 31, 1982. Landlord was advised that the monthly rental to be paid by the subtenant would be $724.56, or ten per cent above the rental on the prime lease. Indeed, the sublease agreement executed by tenant and the subtenant provided:

"Both the overtenant and undertenant hereby affirm that the rent stipulated in paragraph 4 herein [§ 724.56] represents the only consideration paid by Undertenant to Overtenant for the demised premises and the use and benefit of any appurtenances thereto...."

It is not now disputed that contrary to the information given to the landlord and the sublease provision quoted above, tenant actually charged the subtenant $1500 per month; a broker received a $1500 commission (i.e., one month's rent) for its role in the transaction.

Upon learning of this state of facts, landlord commenced holdover summary proceedings. Tenant answered, but did not testify; the subtenant defaulted. Housing Court found that tenant had violated a substantial lease obligation, in that he had procured landlord's consent to the sublease on the basis of misrepresentation. A final judgment of possession was granted in landlord's favor, but issuance of the warrant was stayed on the ground that the breach had been "cured" shortly after the commencement of the proceeding, the subtenant having removed from the premises.

We disagree with so much of the decision below as permanently stayed issuance of the warrant. The cure provision contained in subdivision 4 of RPAPL § 753 is not to be rotely applied in all cases (see e.g., The Beekman Estate v. Hanson, N.Y.L.J., Dec. 5, 1984, p. 6, col. 2 [AT 1] ), and we think a cure in these circumstances would not be in furtherance of the public interest. The Rent Stabilization Law was enacted, in part, "in order to prevent exactions of unjust, unreasonable and oppressive rents and rental agreements and to forestall profiteering, speculation and other disruptive practices ..." which were then prevailing due to an acute...