PLWJ Realty, Inc. v. Gonzalez

187 Misc. 2d 241, 721 N.Y.S.2d 458, 2000 N.Y. Misc. LEXIS 571

• Court: Appellate Terms of the Supreme Court of New York
• Decided: October 24, 2000
• Status: Published

Opinions

OPINION OF THE COURT

Per Curiam.

Final judgment entered July 8, 1999 affirmed, with $25 costs.

Based upon the testimony of landlord’s on-site employees and private investigator, credited by the Civil Court, the court could fairly find that the small studio apartment had been vacant for more than one year; that tenant was not residing there; and that tenant’s adult son and immediate family subsequently entered into possession. The record therefore supports the determination that there was an unlawful sublet/ assignment without consent. Moreover, a departing tenant may not transfer possession to family members where there has been no concurrent occupancy (see, Tagert v 211 E. 70th St. Co., 63 NY2d 818). Landlord was not required to serve a notice of nonrenewal since the petition was premised upon a breach of the lease and Real Property Law § 226-b, not nonprimary residence (cf., Hudson Assocs. v Benoit, 226 AD2d 196).

We have considered tenant’s remaining arguments and find them to be without substantial merit.