Marbru Associates v. Kaplan

148 A.D.2d 394, 539 N.Y.S.2d 343, 1989 N.Y. App. Div. LEXIS 4078

Opinion

Order and judgment (denominated judgment), Su preme Court, New York County (Andrew R. Tyler, J.), entered on or about November 17, 1987, which, inter alia, granted defendant’s motion for summary judgment and directed plaintiff to offer defendant a renewal lease for certain premises, unanimously modified, on the law, without costs, the motion for summary judgment denied, the direction that plaintiff offer a renewal lease vacated, the matter remanded for further proceedings as to the actual use of the apartment, and, as modified, affirmed.

Issues of fact exist on this record as to whether defendant’s occupancy is residential, commercial, or both. The lease itself reflects a commercial usage. The record contains no evidence that defendant resided on the premises. The usage of the leased premises has not been proven, and questions of fact therefore exist as to whether the premises fall within the protection of the Rent Stabilization Law and whether defendant is entitled to a renewal lease. (Golfinos v 400 Coop. Corp., 110 AD2d 522; Matter of Zeitlin v New York City Conciliation & Appeals Bd., 46 NY2d 992.) We remand for a determination of these issues. Concur — Murphy, P. J., Kupferman, Carro, Rosenberger and Smith, JJ.