Respondent-undertenant Domingo Cruz appeals from a final judgment of the Civil Court of the City of New York, New York County (Michelle D. Schreiber, J.), entered February 17, 2010, awarding possession to landlord in a holdover summary proceeding. The appeal brings up for review (1) an order of the same court (Jean T. Schneider, J.), dated August 11, 2008, which denied the joint motion of respondents Cruz and Rafael Fernandez seeking dismissal of the petition, and (2) that portion of an order of the same court (Gerald Lebovits, J.), dated October 23, 2008, which denied the joint motion of those respondents seeking disclosure.
Square Block Assoc., Inc. v Fernandez
Decided on November 26, 2010
Appellate Term, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: Shulman, J.P., McKeon, Schoenfeld, JJ
Final judgment (Michelle D. Schreiber, J.), entered February 17, 2010, affirmed, with $25 costs.
We agree with Civil Court that application of the "illusory tenancy" doctrine is not warranted under the particular facts of this illegal sublet holdover summary proceeding. The trial evidence, fairly interpreted, supports the court's finding that the subtenancy was unauthorized, and that appellant-undertenant Cruz participated with the prime tenant, his former roommate at the premises and long-time friend, in a "scheme" to "deprive the landlord of knowledge" that the prime tenant had vacated the apartment (see Vesky v Antunez, 191 Misc 2d 246 ; West 46 Equit., Inc. v Henry, NYLJ Sept. 8, 1997, at 26, col 6 [App Term, 1st Dept]). The evidence also supports the court's finding that landlord did not have actual or constructive knowledge of the prime tenant's arrangement with Cruz (see Primrose Mgt. Co. v Donahoe, 253 AD2d 404 ). Neither the prime tenant nor Cruz notified landlord that the prime tenant had vacated; rent was continuously paid by Cruz with money orders in the name of the prime tenant; and the prime tenant, who had occupied the premises for many years, executed renewal leases after he vacated.
Moreover, the evidence failed to establish that the prime tenant "improperly profit[ed] by violating the rent regulations..., the hallmark of an illusory tenancy" (Primrose Mgt. Co.,253 AD2d at 405). The prime tenant did not engage in profiteering since he collected no rent from Cruz. That the prime tenant's arrangement with Cruz "may have been motivated by [the prime] tenant's subjective hope that the building premises ultimately would be converted to cooperative ownership at some future point, did not, without more, warrant application of the illusory tenancy doctrine" (333 E. 49th Partners, LP v Siebert, 23 Misc 3d 132[A], 2009 NY Slip Op 50680[U] ).
The record discloses no evidentiary error warranting reversal. The court providently exercised its discretion in denying Cruz's request to draw an adverse inference against landlord because of landlord's failure to present the testimony of unidentified "back office" witnesses (see Rickard v Port Auth. of New York and New Jersey, 5 AD3d 232, 233 ; Hess v Murnane Bldg. Contr., Inc., 306 AD2d 824 ).
We have considered Cruz's remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER ...