Appeal, in three consolidated summary proceedings, from orders of the Civil Court of the City of New York, Kings County, dated January 23, 2003 (Gerald Lebovits, J.), October 3, 2003 (James R. Grayshaw, J.), and October 6, 2003 (James R. Grayshaw, J.), and from three final judgments of said court (Gary Franklin Marton, J.), entered January 6, 2004. The order dated January 23, 2003 implicitly denied a motion by tenants and undertenants for summary judgment dismissing the petitions and granted a cross motion by landlord for summary judgment (see 315 Berry St. Corp. v Huang, 6 Misc 3d 1007[A], 2003 NY Slip Op 51740[U] [Civ Ct, Kings County 2003]). The order dated October 3, 2003, insofar as appealed from as limited by the brief, awarded landlord attorney's fees in the sum of $36,115. The order dated October 6, 2003 clarified the provisions of the October 3, 2003 order with respect to the payment of use and occupancy. The final judgments awarded possession to landlord in each of the three holdover summary proceedings.

Appeal from orders dated January 23, 2003, October 3, 2003 and October 6, 2003 dismissed.

Final judgments reversed without costs, order dated January 23, 2003 and so much of the order dated October 3, 2003 as awarded landlord attorney's fees in the sum of $36,115 vacated, motion by tenants and undertenants for summary judgment dismissing the petitions granted, cross motion by landlord for summary judgment denied and matter remanded to the court below for all further proceedings.

The appeal from the orders dated January 23, 2003 and October 3, 2003 is dismissed because any right of direct appeal therefrom terminated with the entry of the final judgments (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from the orders are brought up for review and have been considered on the appeal from the final judgments (CPLR 5501 [a] [1]).

The appeal from the order dated October 6, 2003 is dismissed as abandoned.These three holdover proceedings concern three units in a loft building, located at 315 Berry Street in Brooklyn, New York. Landlord previously procured the deregulation of each of the subject units under the New York City Loft Law (Multiple Dwelling Law art 7-C) by purchasing the rights to the units from the former tenants pursuant to Multiple Dwelling Law § 286 (12). After purchasing the rights to each unit, landlord rented each of the units to new tenants.

As in the case of Matter of 315 Berry St. Corp. v Hanson Fine Arts (39 AD3d 656 [2007]), it is undisputed in this case that there are six or more residential units in the building, that the applicable zoning laws generally permit residential use, and that landlord sought legal authorization to convert the premises to residential use. Landlord further admitted that it acquiesced in the residential use of each of the units, despite its use of commercial leases for all [*3]of the units and despite the fact that it had not yet obtained a residential certificate of occupancy. Landlord also conceded that tenants did work in each unit, although it contended that the units were residential when they moved in. As to at least one of the units, landlord filed a declaration of intent with the New York City Loft Board, in connection with the buyout, stating that the unit would be used for nonresidential purposes.

Landlord did not deny that it allowed these residential tenancies prior to obtaining a residential certificate of occupancy, thus circumventing the requirements of the Multiple Dwelling Law, and that it did so by requiring tenants to take commercial leases while knowing that their tenancies were residential. Landlord contends that it only used commercial leases because that is what the Real Estate Board sent. However, in each lease, the stated commercial use is not part of the pre-prepared lease. Moreover, each lease includes a rider explicitly forbidding residential use, which the managing agent of the building testified he probably received from landlord.

Given all of these circumstances, the court below incorrectly determined that tenants are merely month-to-month tenants and are not protected under the Emergency Tenant Protection Act of 1974, the Rent Stabilization Law of 1969 and the Rent Stabilization Code (see Matter of 315 Berry St. Corp. v Hanson Fine Arts, 39 AD3d 656 [2007], supra).^[FN1]

Accordingly, the final judgments are reversed, the order dated January 23, 2003 and so much of the order dated October 3, 2003 as awarded landlord attorney's fees in the sum of $36,115 are vacated, the motion by tenants and undertenants for summary judgment dismissing the petitions predicated on notices terminating month-to-month tenancies is granted, and the cross motion by landlord for summary judgment is denied. The matter is remanded to the court below for all further proceedings.
Pesce, P.J, Weston Patterson and Golia, JJ., concur.
Decision Date: April 07, 2008