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Wassfam, LLC v. Ude (N.Y.App.Term 12/29/2009)

NEW YORK APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT


December 29, 2009

WASSFAM, LLC, MW 100-104 WEST 17TH STREET, LLC AND JGCB, LLC, PETITIONERS-LANDLORD-APPELLANTS,
v.
IKE UDE, RESPONDENT-TENANT-RESPONDENT, AND "JOHN DOE" AND/OR "JANE DOE", RESPONDENTS-RESPONDENTS.

Landlord appeals from an order of the Civil Court of the City of New York, New York County (David B. Cohen, J.), entered July 25, 2008, which denied its motion for summary judgment in a holdover summary proceeding.

Per curiam.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the printed Miscellaneous Reports.

PRESENT: McKeon, P.J., Schoenfeld, Heitler, JJ.

570580/08.

Order (David B. Cohen, J.), entered July 25, 2008, reversed, with $10 costs, and landlord's motion for summary judgment of possession is granted. Execution of the warrant of eviction shall be stayed for 30 days from service of a copy of this order, with notice of entry.

Petitioner-landlord demonstrated its prima facie entitlement to summary judgment on the holdover petition, by establishing that the building premises was subject to stabilization coverage solely as a result of the predecessor owner's participation in the former J-51 tax abatement program (see Administrative Code of City of New York § 11-243) and that respondent Ude's tenancy began several years after the J-51 tax abatement expired (see Ogando v Pamela Equities Corp., 44 AD3d 367 [2007]; 155 Wooster, LLC v Dalrymple, 21 Misc 3d 138[A], 2008 NY Slip Op 52306[U] [2008]. In opposition, respondent failed to raise a triable issue. That the predecessor owner conditionally agreed to provide respondent with a rent stabilized lease in settling a prior eviction proceeding brought in 2003 against the (then) record tenant did not serve to confer full stabilization protection upon respondent (see 546 W. 156th St. HDFC v Smalls, 43 AD3d 7 [2007]; cf. Matter of Carrano v Castro, 44 AD3d 1038 [2007]), at least in these circumstances, where the record before us contains no indication that respondent complied with the non-monetary condition specified in the settlement stipulation and shows that the stipulating parties consistently treated respondent's tenancy as unregulated by entering into a series of unregulated lease and renewal agreements.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

20091229

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