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Breyre v. Meyer

NEW YORK APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT


April 16, 2010

BRIAN BREYRE AND ANTONIA SISON PETITIONERS-LANDLORDS-RESPONDENTS,
v.
MELISSA MEYER, RESPONDENT-TENANT-APPELLANT, AND "JOHN DOE" AND "JANE DOE," RESPONDENTS-UNDERTENANTS.

Tenant appeals from an order of the Civil Court of the City of New York, New York County (Peter M. Wendt, J.), dated September 26, 2008, which denied her motion, inter alia, to stay enforcement of a final judgment issued in favor of petitioner-landlords in a holdover summary proceeding based on owner use grounds.

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, J.

Order (Peter M. Wendt, J.), dated September 26, 2008, affirmed, with $10 costs, for the reasons stated by Peter M. Wendt, J. at Civil Court.

We agree that appellant's alleged attainment of senior citizen status -- months after completion of a lengthy trial, entry of an unappealed possessory judgment in landlords' favor, and landlords' timely application for a warrant of eviction -- did not serve to trigger the equivalent housing provisions of Rent Stabilization Code (9 NYCRR) § 2524.4(a)(2). The cited Code section requires a landlord seeking to recover a stabilized apartment for personal use to offer an elderly or disabled "tenant lawfully occupying" the unit "an equivalent or superior housing accommodation at the same or lower regulated rent in a closely proximate area." As the trial court properly recognized, by the time appellant is said to have turned 62, the parties' landlord-tenant relationship had long since been severed. In this posture, appellant cannot properly be considered a "tenant lawfully occupying" the stabilized apartment within the meaning of Code section 2524.4(a)(2) (see generally MH Residential 1, LLC v Barrett, 22 Misc 3d 25 [2008], lv granted 2009 NY Slip Op 79942[U] [2009]; cf. Croman v Leighton, 12 Misc 3d 73 [2006]; Blane v Isles, 142 Misc 2d 1 [1988] [tenant shown to have reached the age of 62 during trial proceedings]). Matter of McMurray v New York State Div. of Hous. & Community Renewal (72 NY2d 1022 [1988]) is inapposite, since, among other distinguishing features, it concerned not the finality of a court-issued possessory judgment, but an agency-issued certificate of eviction, which, far from self-executing, provides the initial basis for jurisdiction in a subsequent eviction proceeding.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

20100416

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