Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion by respondent seeking dismissal of the petition pursuant to CPLR 3211.

PapersNumbered

Notice of Motion and Affidavits Annexed1

Affirmation in Opposition2

Reply3

__________________________________________________________________________ _

Upon the foregoing cited papers, the Decision and Order on this Motion is as follows:

Petitioner, Lothar F. Gue, commenced this holdover proceeding against Michael Silverstein as Administrator of the Estate of Olga Silverstein ("the Estate") and Jeremy Silverstein a/k/a Jeremy Xido (collectively "respondents") on the ground that the Estate was in violation of the lease for the subject premises by assigning and/or subletting the premises without permission of the landlord. Respondents now move pre-answer to dismiss the petition pursuant to CPLR 3211 (a)(7) for failure to state a cause of action.

In seeking dismissal of the petition, respondents rely on the litany of cases that hold that a landlord generally may not maintain a holdover proceeding premised on sublet or assignment when the allegations are predicated on a transfer of interest to a close family member with strong historic ties to the subject premises (see e.g. PLWJ Realty, Inc. v Gonzalez, 285 AD2d 370 [1st Dept 2001]; Hudson Street Equities Group, Inc. v Escoffier, 2003 NY Slip Op 51213[U] [App Term, 1st Dept]; MF Holding LLC v Apostolopoulos, 2002 NY Slip Op 50168[U] [App Term, 1st Dept]; Santorini Equities, Inc. v Picarra, 2003 NY Slip Op 50645[U] [App Term, 1st Dept]; 235 West 71 Street LLC v Chechak, 4 Misc 3d 114, 115 [App Term, 1st Dept] ; Park Holding Co. v Rosen, 241 AD2d 304 [1st Dept 1997]). To support their claims, respondents set forth a sole affidavit from respondent Jeremy Silverstein outlining his sporadic use of the premises prior to his grandmother's death.

"On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction (see CPLR 3026). [The court] accept[s] the facts as alleged in the complaint as true, accord[s] plaintiffs the benefit of every possible favorable inference, and determine[s] only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88 [1994]). Here, the petition does in fact set forth a cognizable claim of illegal sublet. A lease does not terminate upon the death of a party but rather "passes as personal property to the estate" for the duration of the term (Joint Properties Owners, Inc. v Deri, 488 NY2d 26, 27 [App Term, 1st Dept 1984]). A mechanism exists for the sublet of such a lease and the failure to comply with that procedure gives rise to a cause of action under the Rent Stabilization Code ("RSC") (see Real Property Law § 236; RSC §§ 2524.3[a] and 2525.6). As the petition alleges, along with factual support, that the Estate is in violation of RSC §§ 2524.3(a) and 2525.6 by "subletting and/or assigning the rights of occupancy of the subject premises to Jeremy Silverstein," the notice survives this CPLR 3211 (a)(7) motion to dismiss (see e.g. Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977] [When reviewing a CPLR 3211 motion to dismiss, "the sole criterion is whether the pleading [*2]states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail"]).

To the extent that respondents argue that the actual use of the premises do not give rise to a claim of illegal subletting, that claim is not sufficiently supported with documentary evidence to justify dismissal at this time under CPLR 3211. The only support proffered by respondents is a self-serving affidavit from respondent Jeremy Silverstein attesting that he is the prior tenant of record's grandson, that he has used the apartment periodically and that he views it as his "only permanent home." When reviewing a CPLR 3211 (a)(7) motion to dismiss, which has not been converted to a CPLR 3212 motion, "affidavits may be received for a limited purpose only, serving normally to remedy defects in the complaint" (see Rovello v Orofino Realty, 40 NY2d 633, 636 [1976]). While there may be instances where an affidavit can establish "that [petitioner] has no cause of action . . . [i]t seems that after the [CPLR] amendment of 1973 affidavits submitted by the defendant will seldom if ever warrant the relief he seeks" (id.). Thus, as petitioner is under no obligation under these circumstances to lay bear its proof at this early stage in the proceeding, it had no obligation to controvert respondents' affidavit at this time. However, to the extent that respondents may be able to establish facts that would undermine petitioner's ability to maintain this cause of action, that issue is reserved for trial or an appropriate summary judgment motion.

Accordingly, respondents' CPLR 3211 (a)(7) motion to dismiss is denied. Respondents are directed to file and serve and answer within 14 days. This matter is restored to the Part A Calendar on October 30, 2009 at 9:30 am for all purposes.The foregoing constitutes the decision and order of this court.

Dated: September 29, 2009___________________________

New York, New YorkDAVID J. KAPLAN, J.H.C.