Chusid v. Wright

Appellate Division of the Supreme Court of New York

Chusid v. Wright

138 A.D.2d 291, 526 N.Y.S.2d 99, 1988 N.Y. App. Div. LEXIS 3160

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 24, 1988

StatusPublished

Cited by6 cases

This text of 138 A.D.2d 291 (Chusid v. Wright) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Chusid v. Wright, 138 A.D.2d 291, 526 N.Y.S.2d 99, 1988 N.Y. App. Div. LEXIS 3160 (N.Y. Ct. App. 1988).

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Opinions

Order, Appellate Term (Hughes, Riccobono, Parness, JJ.), entered May 5, 1987, which, inter alia, affirmed an order, Civil Court, New York County (Charles Ramos, J.), entered May 9, 1986, which granted petitioners’ motion for renewal, and, upon renewal, granted summary judgment in favor of petitioners, affirmed, without costs or disbursements.

In this holdover proceeding petitioners, the landlords, seek to recover possession of the apartment because the tenant of record, Benjamin Wright, who owns three apartments in the same building, does not occupy the apartment as his primary residence. For the last five years the sole occupant of the apartment has been Elizabeth Jason, Wright’s mother-in-law. As the dissent notes, the parties agree that the determinative issue is whether Jason’s tenancy was effectively recognized by the landlords. Civil Court granted summary judgment to petitioners and Appellate Term affirmed. We agree that a factual issue is not raised, and also affirm.

The thrust of Jason’s claim is that petitioners were aware of and accepted her occupancy, and that petitioners recognized her tenancy when they accepted her execution of a subscription agreement for the apartment pursuant to a plan converting the building into a cooperative corporation. The claim that petitioners recognized Jason’s tenancy is without support in the record. All rent for the apartment was paid by Wright. Jason never tendered rent. The registration statement on file for the apartment with the Department of Housing and Community Renewal designates Wright as the tenant of record, and in correspondence with the Attorney-General concerning the conversion plan Wright was always listed as the tenant. [292]*292Nowhere in writing have the landlords ever acknowledged Jason’s tenancy, and, indeed, nothing can be discerned in the record indicating that the landlords were even aware of her occupancy of the apartment.

The claim that the execution of the subscription agreement created a legal tenancy is equally specious. The agreement was executed on November 8, 1983. The plan had been declared effective on October 3, 1983, with 17 subscribers, 2 more than the minimum needed to make the plan effective. Thus, at the time Jason executed the agreement, albeit at an insider’s price, outsiders could have subscribed to purchase her apartment, or any other occupied apartment in the building. Acceptance of an agreement to purchase would only have given the subscriber the right to purchase the apartment. Without a purchase the subscriber could not lay claim to any right to occupy the apartment, and certainly could not claim any rights as a tenant, whether statutory or contractual.

Jason’s execution of the subscription agreement was conditioned upon Wright’s waiver of his right to purchase as the tenant of record. Wright consented in writing to Jason’s purchase on November 8, again, after the plan had already been declared effective. It would appear that Wright had forfeited his right to purchase before the plan had been declared effective, since an insider’s right to purchase would have lapsed before that date. Perhaps he did so in order to permit Jason the opportunity to purchase. Speculation on this point is, of course, useless, but also irrelevant, since all Jason could acquire by any assignment, explicit or implied, was the right to purchase, not rent-controlled status.

Jason, whose sole relationship is that of a subscriber to a conversion plan, cannot attain tenant status, particularly rent-controlled tenancy, by means of subterfuge. As has been noted, "The creation of a landlord-tenant relationship should not be reduced to a matter of gamesmanship, seduction and artifice” (Metropolitan Life Ins. Co. v Sucdad, NYLJ, Aug. 6, 1985, at 6, col 1 [App Term, 1st Dept]). Jason’s execution of a subscription agreement (in which apparently she has lost interest), offered to her only after the tenant of record had waived his right to purchase the apartment, is nothing more than an attempt to achieve tenant status and should not be rewarded. In any event, though, petitioners’ acceptance of her execution of the subscription agreement gave Jason nothing more than the right to purchase the apartment. Concur— Kupferman, Sullivan and Carro, JJ.

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Order, Appellate Term (Hughes, Riccobono, Parness, JJ.), entered May 5, 1987, which, inter alia, affirmed an order, Civil Court, New York County (Charles Ramos, J.), entered May 9, 1986, which granted petitioners’ motion for renewal, and, upon renewal, granted summary judgment in favor of petitioners, affirmed, without costs or disbursements.

In this holdover proceeding petitioners, the landlords, seek to recover possession of the apartment because the tenant of record, Benjamin Wright, who owns three apartments in the same building, does not occupy the apartment as his primary residence. For the last five years the sole occupant of the apartment has been Elizabeth Jason, Wright’s mother-in-law. As the dissent notes, the parties agree that the determinative issue is whether Jason’s tenancy was effectively recognized by the landlords. Civil Court granted summary judgment to petitioners and Appellate Term affirmed. We agree that a factual issue is not raised, and also affirm.

The thrust of Jason’s claim is that petitioners were aware of and accepted her occupancy, and that petitioners recognized her tenancy when they accepted her execution of a subscription agreement for the apartment pursuant to a plan converting the building into a cooperative corporation. The claim that petitioners recognized Jason’s tenancy is without support in the record. All rent for the apartment was paid by Wright. Jason never tendered rent. The registration statement on file for the apartment with the Department of Housing and Community Renewal designates Wright as the tenant of record, and in correspondence with the Attorney-General concerning the conversion plan Wright was always listed as the tenant. [292]*292Nowhere in writing have the landlords ever acknowledged Jason’s tenancy, and, indeed, nothing can be discerned in the record indicating that the landlords were even aware of her occupancy of the apartment.

The claim that the execution of the subscription agreement created a legal tenancy is equally specious. The agreement was executed on November 8, 1983. The plan had been declared effective on October 3, 1983, with 17 subscribers, 2 more than the minimum needed to make the plan effective. Thus, at the time Jason executed the agreement, albeit at an insider’s price, outsiders could have subscribed to purchase her apartment, or any other occupied apartment in the building. Acceptance of an agreement to purchase would only have given the subscriber the right to purchase the apartment. Without a purchase the subscriber could not lay claim to any right to occupy the apartment, and certainly could not claim any rights as a tenant, whether statutory or contractual.

Jason’s execution of the subscription agreement was conditioned upon Wright’s waiver of his right to purchase as the tenant of record. Wright consented in writing to Jason’s purchase on November 8, again, after the plan had already been declared effective. It would appear that Wright had forfeited his right to purchase before the plan had been declared effective, since an insider’s right to purchase would have lapsed before that date. Perhaps he did so in order to permit Jason the opportunity to purchase. Speculation on this point is, of course, useless, but also irrelevant, since all Jason could acquire by any assignment, explicit or implied, was the right to purchase, not rent-controlled status.

Jason, whose sole relationship is that of a subscriber to a conversion plan, cannot attain tenant status, particularly rent-controlled tenancy, by means of subterfuge. As has been noted, "The creation of a landlord-tenant relationship should not be reduced to a matter of gamesmanship, seduction and artifice” (Metropolitan Life Ins. Co. v Sucdad, NYLJ, Aug. 6, 1985, at 6, col 1 [App Term, 1st Dept]). Jason’s execution of a subscription agreement (in which apparently she has lost interest), offered to her only after the tenant of record had waived his right to purchase the apartment, is nothing more than an attempt to achieve tenant status and should not be rewarded. In any event, though, petitioners’ acceptance of her execution of the subscription agreement gave Jason nothing more than the right to purchase the apartment. Concur— Kupferman, Sullivan and Carro, JJ.

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Bluebook (online)

138 A.D.2d 291, 526 N.Y.S.2d 99, 1988 N.Y. App. Div. LEXIS 3160, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chusid-v-wright-nyappdiv-1988.

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