This case is not published in a printed volume and its disposition appears in a table in the reporter.
Manuel J. Mendez, J.
The plaintiff has made a motion for summary judgment upon the ground that the defendant has violated the terms of the renewal lease by having an illegal subtenant that was murdered in the apartment. Plaintiff alleges it first learned of the illegal sublet after it was contacted by the District Attorney's Office in May of 2005. Defendant has been evicted on default from the premises and plaintiff is now alleging he is responsible for rent until the end of the term of the renewal lease August 31, 2005, and for approximately a subsequent two and a half months, as the apartment was quarantined by the District Attorney's office, until November 17, 2005.
The defendant opposes said motion and cross moves for an order denying plaintiff summary judgment, and to the extent a judgement is rendered in favor of the plaintiff at trial that the judgment be limited to the period of October 11, 2005 through November 17, 2005. Defendant alleges he advised plaintiff of the sublease orally, that it was aware of the sublease and approved it; however, there was no written agreement or correspondence between the parties. Defendant also states that after the murder of the sub-tenant the apartment was taken by a government agency for a public purpose which resulted in the lease ending effective as of May 30, 2005. Defendant claims he was constructively evicted from the apartment by the district attorney's office until it was released to the plaintiff, on or about November 17, 2005. Prior to that date in September of 2005, he offered to surrender the apartment to the plaintiff but they refused to accept, thus failing to mitigate damages.
In order to prevail on a motion for summary judgment, the proponent must make a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence, eliminating all material issues of fact. Id .; Klein v. City of New York, 89 N.Y.2d 833, 834-35 (1996); Ayotte v. Gervasio, 81 N.Y.2d 1062, 1062 (1993), Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324 (1986). Once the moving party has satisfied these standards, the burden shifts to the opponent to rebut that prima facie showing, by producing contrary evidence, in admissible form, sufficient to require a trial of material factual issues. Kaufman v Silver, 90 N.Y.2d 204, 208 (*1997); Amatulli v Delhi Constr. Corp., 77 N.Y.2d 525, 533-34 (1999); Iselin Co. v Mann Judd Landau, 71 N.Y.2d 420, 427 (1988).
The Real Property Law 226-b, indicates the procedures that must be followed to obtain the right to sublet an apartment. It specifically states:
"2. (a) A tenant renting a residence pursuant to an existing lease in a dwelling having four or more residential units shall have the right to sublease his premises subject to the written consent of the landlord in advance of the subletting. Such consent shall not be unreasonably withheld.
(b) The tenant shall inform the landlord of his intent to sublease by mailing a notice of such intent by certified mail, return receipt requested . Such request shall be accompanied by the following information: (i) the term of the sublease, (ii) the name of the proposed lessee, (iv) the tenant's reasons for subletting, (v) the tenant's address for the term of the sublease (vi) the written consent of any cotenant or guarantor of the lease and (vii) a copy of the proposed sublease to which a copy of the tenant 's lease shall be attached if available, acknowledged by the tenant and proposed subtenant as being a true copy of such sublease.
5. Any sublet or assignment which does not comply with the provisions of this section shall constitute a substantial breach of lease or tenancy."
An oral request for permission to sublet regardless of whether or not it was accepted by the landlord does not constitute a waiver of the statutory requirements that the request be in writing. Caniglia v. Perez, 182 Misc.2d 680, 700 N.Y.S.2d 392 (Civ. Ct. Queens Cty., 1999), Bleeker Associates v. Susanna Hayward, 121 Misc.2d 174, 467 N.Y.S.2d 535 (Civ. Ct. NY Cty., 1993).
The right to sublet an apartment in a rent stabilized building is also subject to New York City Rent Stabilization Law 26-511( c )(12) (f) which provides that a tenant may not sublet an apartment for more than a total of two years out of the four years preceeding the term of sublease. The New York City Rent Stabilization Law 26-511( c )(12) (g) indicates the sublease is subject to the tenants right to a renewal lease.
The right to sublet a rent stabilized apartment is controlled by public policy concerns and the application of the regulatory scheme; therefore, waiver, estoppel, laches and consent do not apply. In a rent stabilized apartment where the landlord is aware of the sublet and even initially consented to it, it was determined the statutory provisions were not properly followed and it must become an illegal sublet. 270 Riverside Drive Inc. v. Wilson, 195 Misc.2d 44, 755 N.Y.S.2d 215 (Civ. Ct. NY Cty., 2003).
The doctrine of "illusory tenant" is a judicial attempt to be "fundamentally fair." 270 Riverside Drive Inc. v. Wilson, 195 Misc.2d 44, supra . There are two types of "illusory tenant," one is a straw man used by the landlord for purposes of evading obligations under the rent laws, in those instances the tenant has not resided in the apartment for any period of time and the subtenant may be awarded the tenancy. The second type is when the prime tenant subleases it's stabilized or rent controlled apartment for profit. Conti v. Citrin, 132 Misc.2d 834, 505 N.Y.S.2d 481, Russell v. Henshel, 156 A.D.2d 181, 548 N.Y.S.2d 887 [N.Y.A.D. 1st Dept. 1989], Bruenn v. Cole, 165 A.D.2d 443, 568 N.Y.S.2d 351 [N.Y.A.D. 1st Dept. 1991], Yellen v. Reiner-Kaiser Associates, 89 A.D.2d 561, 452 N.Y.S.2d 107 [N.Y.A.D. 2nd Dept., 1982], Matter of Avon Leasing v. Popolizio, 116 A.D.2d 280, 500 N.Y.S.2d 1019 [ N.Y.A.D. 1st Dept. 1986], Badem Bldgs. v. Abrams, 70 N.Y.2d 45, 510 N.E.2d 319, 517 N.Y.S.2d 450 .
Property is deemed condemned when it is taken for public use through the power of eminent domain. When the landlord ceases to retain title to the land and it is passes to the public entity, the right to collect rent on the part of the landlord and the obligation of the tenant to pay rent ceases to exist. See Lentino v. Maltese,34 Misc.2d 650, 229 N.Y.S.2d 1011 [Dist. Ct., 1962]citing to Lodge v. Martin,31 A.D. 13, 52 N.Y.S. 385. A de facto taking or "inverse condemnation" requires a showing that there was a permanent interference with the owner's, " physical use, possession and enjoyment of the property by one having condemnation powers" or a "permanent ouster" of the owner of the property. A "permanent ouster" by the government entity is demonstrated by proof that it's conduct was such that it's occupation of the property amounted to "the exercise of dominion and control thereof." See Weaver v. Town of Rush,1 A.D.3d 920, 768 N.Y.S. 58 [N.Y.A.D. 4th Dept, 2003], citing Reiss v. Consolidated Edison Co.,228 A.D.2d 59, 6 ...