In this landlord-tenant action concerning the validity of a lease of an apartment at 18 Abingdon Square, New York County, plaintiff-landlord seeks summary judgment against defendants-tenants granting the landlord possession and use and occupancy. Defendants cross-move for summary judgment dismissing the complaint and compelling the plaintiff to offer defendants a rent stabilized lease.

Defendants occupy the subject apartment pursuant to a lease dated December 1, 1995 (the "Lease") between the managing agent of the then-owner of the building Mesrob Vartanian and the tenants Mesrob Vartanian and defendant John Vartanian. Mesrob Vartanian is the father of defendant John Vartanian. The Lease was a for a term of 20 years at a monthly rent of $200.00 and provided that "whether the building is sold or not this lease will not be voided." The Lease did not contain any provision preventing its assignment or subletting thereunder.

On May 1, 1998, Mesrob Vartanian died and defendant John Vartanian was appointed as executor of the Estate. On November 26, 2002, the Estate transferred title to the building to 601 Hudson Realty, LLC, which in turn transferred ownership of the building to plaintiff University Property on January 13, 2004.

Plaintiff argues that this court should invalidate the Lease as contrary to the Rent Stabilization Laws. Plaintiff claims that the Lease is invalid because it seeks to waive certain provisions of the Rent Stabilization Code (RSC)including those which require that a landlord offer either a one or two year vacancy lease to a tenant (RSC [9 NYCRR] 2522.5) and because it does not have any provision against assignment and subletting. Defendants argue that although certain of the terms of the Lease are contrary to the Code, the Lease itself is not void because the apartment was exempt from regulation when the Lease was executed in 1995.

The court agrees with defendants that the Lease should not be voided. It is uncontroverted that at the time the Lease was executed the apartment was not subject to rent regulation under the owner-occupancy exemption in RSC 2520.11 (i) (2). Only upon the death [*2]Mesrob Vartanian on May 1, 1998, did this exemption expire as the apartment was no longer owner-occupied within the meaning of the regulations. As is conceded by the defendants, the Lease at that time failed to comply with Rent Stabilization Code.

RSC 2520.12 provides that "[t]he provisions of any lease or other rental agreement shall remain in force pursuant to the terms thereof, except insofar as those provisions are inconsistent with the ETPA, the RSL or this Code, and in such event such provisions shall be void and unenforceable." (emphasis added). In the case of Rima 106, L.P. v Alvarez, 257 AD2d 201 (1st Dept 1999), the First Department, when confronted with what it termed were "residential apartment leases representing a truly extraordinary form of conveyance which, if enforceable, might carry advantages greater than a life estate or even an estate in fee simple" because those leases contained unlimited assignment and subletting rights as well as permitting non-primary occupancy, did not declare the leases void but instead struck those provisions of the leases which were contrary to the rent laws. Thus contrary to plaintiff's argument, the remedy compelled by statute and caselaw to bring the Lease in this action into compliance with the rent statutes is reformation of the lease terms, not cancellation.

The authorities cited by plaintiff in support of its position that the Lease must be rescinded are inapplicable here because in those cases the leases were declared void because at the time they were entered into they contravened the rent statutes. See Park Towers South Co., LLC v Universal Attractions, 274 AD2d 312, 313 (1st Dept 2000) (court held that a settlement agreement wherein a landlord agreed not to raise a non-primary residence claim was unenforceable as against public policy); Draper v Georgia Properties, Inc., 94 NY2d 809, 811 (1999); Rocky 116 L.L.C. v Weston, 284 AD2d 139, 140 (1st Dept 2001) ("stipulation waiving the primary residence requirements of the Rent Stabilization Law is against public policy and unenforceable"); 390 West End Associates v Baron, 274 AD2d 330, 332 (1st Dept 2000) (lease void because "apartment cannot be deregulated by private contract").

In this action, the Lease was valid when made and was not subject to the rent statutes. Once the exemption from the rent statutes no longer applied, the Lease was required to comply with the statutes and regulations. That is, upon the expiration of the exemption the landlord, the Estate of Mesrob Vartanian, was required to offer the defendants a conforming Lease. See RSC 2520.12. Neither the Estate, nor its successors including the plaintiff herein did so.

Thus with respect to the existing Lease, the court shall declare that the Lease is valid except as to its 20-year term and the provisions allowing subletting and assignment which shall be declared void. The court upon application of the defendants shall order the plaintiff to issue a conforming rent-stabilized lease to defendants.

The court must dismiss plaintiff's cause of action seeking a declaration of non-primary residence. Instructive in this regard is the First Department decision in Ansonia Associates v Rosenberg 163 AD2d 101 (1st Dept 1990). In that case as in the present action, no rent stabilized lease had taken effect between the parties. In upholding the dismissal of a non-primary residence proceeding the Court stated:

There being no rent-stabilized leases in effect, the landlord has no basis for a non-primary residence action at this time. The issue of "primary residence" is relevant only in the context of the Rent Stabilization Code. Absent the regulatory rent laws, a landlord would be free to limit a tenancy to the term covered by the lease between the parties and would not be obligated to offer a renewal lease. The rent stabilization laws, enacted as a consequence of the housing emergency which [*3]prevails, confer certain rights and obligations, among the most important of which is the right of a rent-stabilized tenant to a renewal lease, provided that the apartment in question is maintained as the tenant's primary residence. Where the apartment is not maintained as a primary residence, the terms of the lease control as to the duration of the tenancy and the landlord is relieved of the regulatory obligation to offer the tenant a renewal lease. The fact that the tenant is not using the apartment as a primary residence during the lease term does not entitle the landlord to eviction during that term, but only entitles the landlord not to renew the lease. A jurisdictional prerequisite to non-renewal of a stabilized lease on the basis of non-primary residence is that the landlord have served a notice of non-renewal during the specified window period prior to the expiration of the existing lease term.

Id. at 102 (citations omitted).

In this case, had plaintiff offered a rent stabilized lease to the defendants, the plaintiff would have had the right under the Code to give notice of non-renewal based on non-primary residence during the "window" period. Having not done so, plaintiff has no right at this time to seek eviction where there is no rent stabilized lease in existence. Therefore, plaintiff's cause of action for a declaration of non-primary residence is properly dismissed.

Similarly, plaintiff's cause of action for use and occupancy and attorney's fees must also be dismissed based upon the court's holding that the Lease is not void.

Accordingly, it is

ORDERED and ADJUDGED that plaintiff's motion for summary judgment is DENIED; and it is further

ORDERED and ADJUDGED that defendants' cross-motion for summary judgment is GRANTED and the complaint is DISMISSED; and it is further

ORDERED and DECLARED that plaintiff is directed to provide defendants with a rent stabilized Lease for the premises at issue.

This is the decision and order of the court.

Dated: October 12, 2005 ENTER:

J.S.C.

Counsel:

Plaintiff attorney

Calabro & Fleishell PC

1466 Broadway -Suite 905

New York, NY 10036

Defendant attorney

Himmelstein McConnell Gribben Donoghue & Joseph [*4]

15 Maiden Lane - 17th Floor

New York, NY 10038