Landlord appeals from an order of the Civil Court of the City of New York, New York County (Maria Milin, J.), dated October 5, 2006, which granted the cross motion of respondents Stratton and Douglas, and nonparty Almonte, for summary judgment dismissing the petition in a holdover summary proceeding. Respondents cross-appeal from that portion of the aforesaid order which denied their cross motion for sanctions.

Per Curiam.

Order (Maria Milin, J.), dated October 5, 2006, affirmed, with $10 costs.

The court properly granted summary judgment dismissing the petition in this holdover summary proceeding. It is undisputed that the building at issue was built before 1974 and contains six units used for residential purposes, that landlord knew of and acquiesced in the residential use of the unit and that the applicable zoning regulations generally permit residential use. The record further establishes that the subject residential unit is capable of being legalized even in the absence of Loft Law protection (see Duane Thomas LLC v Wallin, 35 AD3d 232 [2006]; 480-486 Broadway v No Mystery Sound, 16 Misc 3d 137[A], 2007 NY Slip Op 51730[U] [2007]). Under these circumstances, the unit in issue was properly determined to be subject to regulatory protection under the Emergency Tenant Protection Act [ETPA] of 1974 and Rent Stabilization Law (see Matter of 315 Berry St. Corp. v Hanson Fine Arts, 39 AD3d 656 [2007], lv dismissed 10 NY3d 742 [2008]).

Landlord's litigation position, while ultimately unsuccessful, was not frivolous within the meaning of 22 NYCRR § 130-1.1.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur
Decision Date: April 03, 2009