167-169 Allen St. H.d.f.c. v Ebanks (2004 NY Slip Op 50342(U))

167-169 Allen St. H.D.F.C. v Ebanks

2004 NY Slip Op 50342(U)

Decided on April 21, 2004

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This opinion is uncorrected and will not be published in the printed Official Reports.

167-169 ALLEN STREET H.D.F.C., Petitioner-Landlord-Appellant,

against

CELIA EBANKS, 169 Allen Street, Apt. #5C, New York, N.Y. 10002, Respondent-Tenant-Respondent, -and- ADRIANNE VASQUEZ, FERDINAND VASQUEZ JR. and "JOHN DOE" and/or "JANE DOE", Respondents-Undertenants- Respondents.

Landlord appeals from an order of the Civil Court, New York County, dated January 31, 2002 (Jean T. Schneider, J.) granting reargument and, on reargument, adhering to an earlier order of the same court dated June 28, 2001 (Julia

I. Rodriguez, J.) denying landlord's motion for summary judgment.
PER CURIAM:

Order dated January 31, 2002 (Jean T. Schneider, J.) modified to the extent that on reargument, landlord's motion for summary judgment on the holdover petition is granted; as modified, order affirmed, with $10 costs to landlord-appellant.

By the terms of the proprietary lease governing occupancy in this low-income HDFC, tenant was required to use the apartment as her primary residence. Further, if it ceased to [*2]be the primary residence, "no occupancy or use of the apartment, including any sublease or assignment, which otherwise complies with this lease will be permitted" (paragraph 5.03[b][I]). It is not disputed that tenant permanently vacated in 1998. Her claim that she was assured at the time of purchase that she could transfer the apartment to her daughter, who presently occupies the premises, is precluded by the lease clause (paragraph 3.03[b]) prohibiting oral modifications (see, General Obligations Law § 15-301[1]; Sioris v 25 West 43rd Street Co., 223 AD2d 475). In this regard, the lease requires prior consent of the directors and/or shareholders to an assignment of the lease and transfer of the related
shares (paragraph 5.05[b]) (see, 626 East 9 Street HDFC v Collins, NYLJ, September 20, 2001, at 19, col 4 [App Term, 1st Dept]).

Furthermore, tenant did not attempt to comply with the requisite procedure for an assignment, ostensibly because she had been "already advised" that the cooperative would refuse consent due to her alleged objectionable conduct. The tenant should have sought the assignment to her daughter rather than simply vacating and waiting until this proceeding was brought. No factual issue or legal defense to the petition having been raised, summary judgment is granted.

Issuance of the warrant shall be stayed for 30 days after service of a copy of this order with notice of entry.