PLWJ Realty, Inc. v. Gonzalez

Appellate Terms of the Supreme Court of New York

PLWJ Realty, Inc. v. Gonzalez

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

Appellate Terms of the Supreme Court of New York·Decided October 24, 2000·Published

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OPINION OF THE COURT

Per Curiam.

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

[242] 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.

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OPINION OF THE COURT

Per Curiam.

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

[242] 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.

PLWJ Realty, Inc. v. Gonzalez, 187 Misc. 2d 241, 721 N.Y.S.2d 458, 2000 N.Y. Misc. LEXIS 571 (N.Y. Ct. App. 2000).

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