Lesser v. Park 65 Realty Corp.

• Decision Date: 05 May 1988
• Parties: Jamie A. LESSER, Plaintiff-Appellant, v. PARK 65 REALTY CORP., et al., Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 787

527 N.Y.S.2d 787

140 A.D.2d 169

Jamie A. LESSER, Plaintiff-Appellant, v. PARK 65 REALTY CORP., et al., Defendants-Respondents.

Supreme Court, Appellate Division,

First Department.

May 5, 1988.

Before KUPFERMAN, J.P., and ROSS, CARRO, ELLERIN and SMITH, JJ.

MEMORANDUM DECISION.

Order and Judgment (one paper), Supreme Court, New York County, (Irma Vidal Santaella, J.) entered October 15, 1987, which denied plaintiff's motion for a declaratory judgment that he is the tenant of record of the subject apartment, entitled to a lease in his name and the opportunity to tender a subscription agreement and purchase the shares allocated to the apartment pursuant to an offering plan for conversion to cooperative ownership, and granted defendant cross-motion for summary judgment dismissing the complaint and declaring that plaintiff is not a primary resident of the apartment and not entitled to purchase the shares allocated to the apartment, unanimously reversed on the law, and declared that the subject apartment is plaintiff's primary residence, and that he is entitled to a renewal lease and the right to purchase the shares of stock allocated to the apartment, without costs.

Plaintiff commenced this declaratory judgment action to establish both his right to continued occupancy of the apartment he had shared with his grandmother for more than two years prior to her death and his right to purchase the stock allocated to the apartment pursuant to a cooperative conversion plan.

Plaintiff's grandmother, Ethel Lesser, resided at apartment 16B at 65 Central Park West from May, 1968 until her death on December 2, 1985, as a rent stabilized tenant pursuant to a series of renewal leases, the last of which was to expire on September 30, 1986. In November 1983, the plaintiff Jamie Lesser, Ethel's grandson, moved in to reside with her and from that date on he openly and conspicuously lived in the apartment with her and continued to do so after her death on December 2, 1985. On November 21, 1986, after expiration of the last renewal lease, but while plaintiff was occupying the apartment, an offering plan for conversion to cooperative ownership was accepted for filing by the Attorney General. When plaintiff tendered a subscription agreement under the plan, it was rejected by defendants by way of a letter advising that the only tenant of record for the apartment was Ethel Lesser, who had died prior to the filing of the offering plan, and that her heirs or distributees did not acquire any right to purchase the apartment.

A new Rent Stabilization Code became effective on May 1, 1987 and the instant declaratory judgment action was commenced on June 9, 1987, predicated upon provisions of that Code which apply to certain "family members" (including a grandson) and provide that "if the tenant is deceased at the expiration of the lease term, such tenant's family member * * * who has been residing with such tenant in the housing accommodation as a primary resident for a period of no less than two years immediately prior to the death of the tenant * * * shall be entitled to a renewal lease." (Rent Stabilization Code 9 NYCRR §§ 2523.5(b)(2) and 2520.6(o ).) In their answer and counterclaim defendants alleged, inter alia, that plaintiff moved into and took occupancy of the apartment after Ethel Lesser's death and that he did not occupy the apartment as a primary resident for the two years prior to her death, and in addition to seeking the dismissal of plaintiff's complaint, judgment was sought declaring that plaintiff is not a primary resident of the apartment nor a tenant in occupancy and is not entitled to a renewal lease or to purchase the stock as an insider pursuant to the offering plan.

On the motion and cross-motion before the IAS Court, the parties strenuously litigated two issues--1) whether the provisions of the new Code were to be applied retroactively and 2) whether plaintiff grandson had lived in the apartment as a primary resident for the requisite two year period. ¹ The IAS Court did not address the factual primary residence issue because it concluded that the relevant provisions of the new Rent Stabilization Code were not to be applied retroactively, and, that in the absence of such statutory authority, the ruling in Sullivan v. Brevard Associates, 66 N.Y.2d 489, 498 N.Y.S.2d 96, 488 N.E.2d 1208, limiting the right to a renewal lease to the tenant named in the original lease, was controlling. Accordingly, the complaint was dismissed and a declaration in favor of defendants was entered.

We hold, to the contrary, that the remedial provisions of the new Rent Stabilization Code should apply retroactively. Since we find that the proof in the record sufficiently establishes that plaintiff occupied the subject apartment as his primary residence during the requisite period, we further hold that he is entitled to the protection of the relevant provisions of the 1987 Code. Accordingly, we reverse and grant judgment declaring in favor of the plaintiff.

The family succession provisions of the new Rent Stabilization Code were enacted in response to the harsh consequences resulting from displacement from one's home upon the death or departure of a named tenant with whom a family member, not named in the lease, resided. The need for these provisions was especially critical in light of legal developments in recent years in this particular area which have rendered many such family residents vulnerable to eviction, and the new Code provisions in issue were intended to "prevent wholesale evictions" of these persons and create order out of the uncertainties prevailing in the law.

When rent stabilization was adopted in 1969 as a consequence of the acute housing emergency which then existed, and continues to exist, one of the significant protections afforded thereby was the right of tenants to a renewal lease. (See former NYC Administrative Code § YY51-6.0(c)(4).) However, neither the original Rent Stabilization Law nor the Code adopted thereunder, provided a definition for the term "tenant" in the context of entitlement to a renewal lease, and in the ensuing years both the authorized administrative bodies and various courts dealt with the issue of family rights to a renewal lease on a case-by-case basis. The issue, however, was never definitively resolved until the decision by the Court of Appeals in Sullivan v. Brevard Associates, 66 N.Y.2d 489, 491, supra, 498 N.Y.S.2d 96, 488 N.E.2d 1208, which held that in the absence of a different definition of the term "tenant" in the law governing rent-stabilized apartments, only the named tenant, as defined in the lease, is entitled to a renewal lease, and the landlord "is not obligated to offer a renewal lease to a relative of the tenant who occupies the apartment with the tenant during a portion of the lease term".

At the time of the Court of Appeals decision in Sullivan v. Brevard, supra,...