Classic N.Y. Realty 2009, LLC v. Aimco 240 W. 73rd St., LLC

Full title: CLASSIC NEW YORK REALTY 2009, LLC, Petitioner–Appellant, v. AIMCO 240 WEST…

Court: Supreme Court, Appellate Term, New York, First Department.

Date published: May 15, 2012

35 Misc. 3d 139 (N.Y. App. Div. 2012)

2012 N.Y. Slip Op. 50859

953 N.Y.S.2d 549

Opinion

No. 570873/11.

2012-05-15

CLASSIC NEW YORK REALTY 2009, LLC, Petitioner–Appellant, v. AIMCO 240 WEST 73RD STREET, LLC, Aimco 240 240 West 73rd Street Co–Owner, LLC., Respondents–Respondents.

PER CURIAM.

Petitioner, as limited by its brief, appeals from (1) an order of the Civil Court of the City of New York, New York County (Arlene P. Bluth, J.), entered April 4, 2011, after a hearing, which denied its motion to be restored to possession, and (2) that portion of an order (same court and Judge), entered July 22, 2011, which, upon reargument, adhered to the prior determination.
Present: HUNTER, JR., J.P., SHULMAN, TORRES, JJ.

PER CURIAM.

Order (Arlene P. Bluth, J.), entered April 4, 2011, reversed, with $10 costs, motion granted, and petitioner restored to possession of the disputed lobby areas of the building premises. Appeal from order (Arlene P. Bluth, J.), entered July 22, 2011, dismissed, without costs, as academic.

Petitioner, the record tenant of some 89 units in the building premises under a written lease agreement authorizing it to enter into “license[s]” for use of the units as “temporary or transient accommodations,” demonstrated entitlement to be restored to possession of the disputed lobby areas of the building, described in the record as the lobby “concierge/reception desk” and “luggage room.” The hearing evidence, including the respondent-owner's own November 7, 2006 e-mail, showed that petitioner was not only in constructive, if not actual possession of the contested lobby space ( seeRPAPL 713[10] ), but that respondent was well aware of petitioner's colorable tenancy interest in that space at the time of the lockout. In the circumstances present, and particularly considering the then pending Supreme Court litigation between the parties involving petitioner's leasehold, petitioner could not be legally ousted without legal process ( see and compare P & A Bros. v. City of N.Y. Dept. of Parks & Recreation, 184 A.D.2d 267, 268 [1992] ). In issuing a restoration order, we express no view as to petitioner's ultimate tenancy status with respect to the lobby areas, an issue whose resolution hinges, in part, on the outcome of petitioner's appeal in the Supreme Court litigation.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur.