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530 Second Street Co., L.P v. Miryam Alirkan

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS


August 31, 2012

530 SECOND STREET CO., L.P.,
RESPONDENT, --
v.
MIRYAM ALIRKAN, APPELLANT, -AND- KATHRYN ALIRKAN, "JOHN DOE" AND "JANE DOE",
UNDERTENANTS.

Appeal from a final judgment of the Civil Court of the City of New York, Kings County (Oymin Chin, J.), entered April 4, 2011.

530 Second St. Co., L.P. v Alirkan

Appellate Term, Second Department

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.

Decided on August 31, 2012

PRESENT: PESCE, P.J., RIOS and SOLOMON, JJ

The final judgment, after a non-jury trial, awarded possession to landlord in a summary proceeding brought pursuant to RPAPL 713 (11).

ORDERED that the final judgment is reversed, without costs, and the matter is remitted to the Civil Court for the entry of a final judgment dismissing the petition.

Landlord commenced this summary proceeding pursuant to RPAPL 713 (11), alleging that the subject apartment was exempt from rent stabilization because it had been used as an apartment for the building superintendent or an employee, that occupant was landlord's former employee, and that the "rent level reflected this employment." After a non-jury trial, the Civil Court, noting, among other things, that, on some of the leases relied on by occupant, landlord's agent's signature had been rubber-stamped, ruled that occupant had failed to establish her defense that she was a rent-stabilized tenant and awarded landlord a final judgment of possession. We reverse.

Rent Stabilization Code (9 NYCRR) § 2520.11 (m) exempts from rent stabilization "housing accommodations occupied by domestic servants, superintendents, caretakers, managers or other employees to whom the space is provided as part or all their compensation without payment of rent and who are employed for the purpose of rendering services in connection with the premises of which the housing accommodation is a part" (emphasis added). Here, the petition implicitly admits, and tenant's undisputed testimony established, that she had paid rent. Moreover, at trial, tenant introduced a copy of at least one lease, for the 1990-1992 period, which was hand-signed by landlord's agent in several places, which fixed the monthly rent at $421.60. In these circumstances, the preponderance of the proof established that, contrary to landlord's claim, the apartment was not exempt from rent stabilization. Thus, occupant is entitled to a renewal lease (see e.g. Matter of 323 Marine Ave., LLC, DHCR Admin. Review Docket No. SG210026RO [Nov. 23, 2004]; Matter of Willie Hill, DHCR Admin. Review Docket No. QJ2101239RT [Jan. 7, 2003]; Matter of Inez Melendez, DHCR Admin. Review Docket No. OF210088RT [July 20, 2001]).

Accordingly, the final judgment is reversed and the matter remitted to the Civil Court for the entry of a final judgment dismissing the petition.

Pesce, P.J., Rios and Solomon, JJ., concur. Decision Date: August 31, 2012

20120831

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