Harriet Thompson-Shand, Brooklyn, for petitioner.
Silberman & Rhine, New York City (Arthur Rhine of counsel), for respondent.
Debra Silber, J.
After trial on November 19, 2001 and November 27, 2001,
both sides represented by counsel, this commercial (no grounds) holdover action having been tried without a jury, the court finds that a holdover petition based solely upon allegations of commercial use, in light of the facts adduced at trial, must be dismissed.T his proceeding is therefore dismissed with prejudice.
Findings of Fact
The undisputed facts are as follows. Respondent rented a rent-stabilized apartment on the third floor (3R) of the premises in 1994 from the petitioner, who has owned the building since 1989. The building comprises nine apartments and the storefront at issue. In 1998, in response to respondent's inquiry, it was agreed between the parties that respondent would lease the vacant unit, which is a store on the certificate of occupancy, located on the ground floor. Maria Uriarte, the petitioner's witness, testified that she is an officer of the corporation, prepares all the leases, collects the rent and does the corporation's books. She testified that she prepared a residential, Blumberg form T327 lease, for rent-stabilized apartments, with a rider prepared by her which clearly contemplates residential use, commencing February 1, 1998, for the ground floor unit, which is identified on the lease as " storefront," and which respondent refers to as unit 1L. Both parties signed the lease and respondent took occupancy of the space on February 1, 1998, simultaneously vacating apartment 3R. Not one word in the lease or rider thereto indicates that the space leased is commercial. In fact, the line where the apartment to be rented is to be described was left blank. Respondent moved her personal possessions down to the ground floor space, never paying rent for both places for the same period of time. Petitioner renewed the lease twice, for one year each. The latest renewal lease expired on January 31, 2001, after which this proceeding was commenced by service of a 30-day notice terminating " respondent's month to month commercial tenancy." Respondent's exhibit A in evidence is a letter from Ms. Uriarte asking about the second renewal, which states therein, " if you want to renew you will be bound by the original lease terms" and " it shall be noted that you reside in the storefront as a live-in/work space area."
Facts alleged which are subject to some dispute are as follows. Respondent claims she did not do any alterations to the premises, save installation of a wood counter in the kitchen area. At the time respondent entered into the first lease for the
storefront, the space had a refrigerator, stove, toilet and shower stall, along with one sink, which was near the stove.T here was a dispute as to whether the bathroom was enclosed by walls and a door at the time of the lease, petitioner claiming not and respondent claiming that she made no changes. The petitioner employs a superintendent, who resides in an apartment on the ground floor at the premises, who testified that he has been employed by petitioner since prior to 1998, that he has lived at the premises since the 1980's, that he has been in respondent's unit several times, and that he was aware she was living in the space on the ground floor, although he wasn't sure if she was living there since the first day of the lease in 1998. He testified that he saw her and her friends moving her property downstairs when she switched from 3R to 1L. He admitted that he would occasionally knock on her door at night to tell her she was parked on the wrong side of the street, and that a parking space was available should she want to move her vehicle. Respondent claims there was a verbal agreement with Ms. Uriarte that the lease for the storefront would be a rent-stabilized lease, that her rent was similar for the two spaces, that the size of the two spaces was similar, and that her rent security was applied to the lease for the new space, all indicating to her that she was exchanging one residential apartment for another. Respondent claims she was unaware that use of the space as a residence was prohibited by the certificate of occupancy. Respondent gave up an unequivocally rent-stabilized apartment in the building, which she testified was exactly the same size as the storefront (presumably with lower ceilings, but there was no testimony on this point). The court finds credible that respondent thought she had equivalent rights to renewal and rent regulation in the new space, as she was given a rent-stabilized lease. Ms. Uriarte claims there was never an intention on her part to offer a rent-stabilized lease to respondent, and that doing so, despite the existence of the lengthy rider concerning solely residential issues, was inadvertent, as she simply used the respondent's prior lease, changing the rent and the dates. Respondent claims that the two prior tenants of 1L resided in the space, and that she knew them and had visited the space while they lived there, in the period between 1994 and 1998. The petitioner denies this, but provided no evidence to dispute respondent's claims on this issue. Respondent claims she moved to the ground floor because that unit had more light, and because she wouldn't have to carry her bicycle up the stairs. Ms. Uriarte testified that respondent
moved downstairs so she wouldn't have to carry wood upstairs, for whatever art or construction she did with the wood.T he court finds the issue of the tenant's motivation for moving irrelevant to the legal issues raised, as petitioner did not prove that respondent moved ...