Gloveman Realty Corp. v. Jefferys

18 A.D.3d 812, 795 N.Y.S.2d 462

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 31, 2005
• Status: Published

Opinion

In an action, inter alia, for an ejectment, the plaintiff appeals, as limited by its notice of appeal and brief, from so much of an order of the Supreme Court, Kings County (Clemente, J.), dated November 5, 2003, as denied those branches of its motion which were for partial summary judgment on the second and third causes of action and for summary judgment dismissing the defendants’ first, third, fourth, and seventh affirmative defenses and fourth counterclaim, and granted the defendants’ cross motion for summary judgment dismissing the first cause of action for an ejectment.

Ordered that the order is modified, on the law, by deleting the provision thereof granting the cross motion and substituting therefor a provision denying the cross motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The Supreme Court erred in determining that the defendants were entitled to the protections of the Emergency Tenant Protection Act of 1974 (L 1974, ch 576, § 4, as amended; hereinafter the ETPA). The defendants’ illegally-converted lofts are not eligible for protection under the Loft Law (see Multiple Dwelling Law art 7-C). Further, these illegal conversions are not entitled to the protections of the ETPA (see Wolinsky v Kee Yip Realty Corp., 2 NY3d 487, 493 [2004]). Thus, the defendants’ cross motion for summary judgment dismissing the plaintiffs first cause of action for an ejectment should have been denied.

However, as questions of fact remain as to whether the leases between the plaintiff and the defendants were entered into to effect an illegal end, the Supreme Court properly denied those branches of the plaintiffs motion which were for summary judgment on the second and third causes of action and for summary judgment dismissing the defendants’ first, third, fourth, and seventh affirmative defenses and fourth counterclaim (see generally LoMagno v Koh, 246 AD2d 579 [1998]). H. Miller, J.P., Rivera, Spolzino and Skelos, JJ., concur.