Defendant Jonathan Vincent appeals from the order of the Supreme Court, New York County (Louis B. York, J.), entered June 5, 2013, which granted plaintiff's motion for partial summary judgment to the extent of severing and dismissing said defendant's first counterclaim and sixth affirmative defense, and first and fourth affirmative defenses, denied defendant Jean Seward Uppman's motion to dismiss the complaint as against her, and denied Vincent's motion for, inter alia, summary judgment dismissing the complaint as against him.
Grimble & LoGuidice, LLC, New York (Robert Grimble and Robin LoGuidice of counsel), for appellant.
Belkin Burden Wenig & Goldman, LLP, New York (Magda L. Cruz and Sherwin Belkin of counsel), for respondent.
Luis A. Gonzalez, P.J. Angela M. Mazzarelli Rolando T. Acosta Dianne T. Renwick, JJ.
Plaintiff is the owner of the building located at 201 West 86th Street, known as the Belnord. In 1994, the previous owner of the Belnord and the tenants' association entered into an agreement resolving various disputes, including, according to an affidavit by plaintiff's property manager, "the disputed rent regulation status of certain apartments." In the agreement the previous owner acknowledged that the tenants were "rent controlled, " as that term was defined by applicable regulations. In 2006, the owner and the tenants' association entered into a revised agreement (the New Agreement), which superseded the 1994 agreement. The New Agreement provided, in pertinent part, that the apartments of those tenants who signed the New Agreement were no longer subject to rent regulation. It also provided that tenants who signed the New Agreement would receive new 49-year leases, with an option to continue as month-to-month tenants for those who survived the 49-year term, with succession rights, as well as limits on annual increases in rents. The owner and each tenant who signed the New Agreement were required to jointly submit a copy of the New Agreement to DHCR and request that the agency issue an order pertaining to the respective apartment that would
"declare and determine that each [apartment] and all of the tenants, residents, and/or other occupants [thereof], shall be exempt from coverage by and/or applicability of the City Rent Law (a/k/a Rent Control), the Rent and [E]viction Regulations, the Rent Stabilization Law of 1969, as amended, the Emergency [T]enant Protection Act of 1974, as amended, and/or the Rent Stabilization Code..."
The New Agreement provided that if DHCR did not issue orders containing the terms described therein within 120 days of the parties' joint submission of the New Agreement to DHCR, the agreement would become void. The New Agreement further stated that
"neither the [tenants' association], nor any of the signatories to this New Agreement may oppose the application to DHCR, including but not limited to seeking a Petition for Administrative Review. Should the [tenants' association] oppose the application or support any opposition to the application, then [the owner] shall be permitted to declare [tenants' association] in breach of the New Agreement and void the agreement."
The New Agreement separately provided that "[g]randchildren and other descendents who are not children of the Settling Tenant(s) are not successor tenants and have no right of succession..., except where the grandchild is a resident of the apartment on the date of the New Agreement, and whose name is set forth in Exhibit C." Additionally, an otherwise qualified person was only eligible to succeed to an apartment if he or she was "co-occupying the apartment as a joint primary residence with the Settling Tenant for the two years immediately preceding the Settling Tenant's permanent vacatur therefrom." Further, the New Agreement required all tenants to maintain their apartments as their primary residence. The New Agreement specified that a breach of this requirement would entitle the landlord to seek a remedy in court, including "rescission of the future benefits under the New Agreement to the Settling or Successor tenant, and/or recovery of possession of said Settling or Successor Tenant's apartment."
Defendant Jean Seward Uppman, the tenant of apartment 806 in the Belnord, executed the New Agreement. In addition, her grandson, defendant Jonathan Vincent, signed the agreement underneath the words: "The following adult occupants of apartment , who may have rights to succession under rent control or rent stabilization rules that are terminated by this Agreement, waive those potential rights and acknowledge this Agreement."
On November 15, 2006, DHCR mailed Uppman a one-page order. The order stated that
"the parties through tenants' counsel advised that, as anticipated in a meeting with DHCR in January  2005 the owners and the tenants['] association finalized an agreement to modify the rents and status of the apartments occupied by the members of the association in return for certain ...