| 310 E. 4th St. HDFC v Brandstein |
| 2016 NY Slip Op 50051(U) [50 Misc 3d 135(A)] |
| Decided on January 19, 2016 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
Landlord appeals from an order of the Civil Court of the City of New York, New York County (Jack Stoller, J.), dated July 11, 2014, after a nonjury trial, which granted tenant's motion to dismiss the petition in a nonpayment summary proceeding at the close of landlord's case.
Per Curiam.
Order (Jack Stoller, J.), dated July 11, 2014, reversed, with $10 costs, tenant's motion to dismiss denied, petition reinstated and matter remanded for a new trial.
This nonpayment summary proceeding should not have been dismissed at the close of landlord's case. The evidence so far presented, viewed in the light most favorable to landlord (see Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]), established that the housing accommodation is contained in a building operating exclusively for charitable purposes on a nonprofit basis, and therefore exempt from rent stabilization (see Rent Stabilization Code [9 NYCRR] § 2520.11[j]; 546 W. 156th St. HDFC v Smalls, 43 AD3d 7 [2007]). This evidence was sufficient to withstand tenant's motion to dismiss, and this notwithstanding tenant's defenses that the apartment is rent stabilized because of landlord's receipt of J-51 tax benefits and a federal section 312 loan. We therefore reinstate the petition and remand for a new trial.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur