Summary
In Hoffman v 345 East 73 Street Owners Corp. (186 AD2d 507 [1st Dept 1992]), the Appellate Division, First Department, specifically held that "persons who pay a fee to the proprietary lessee to temporarily reside in the premises" must be deemed to be "licensees" rather than "guests.
Summary of this case from Bd. of Managers of 425 Fifth Ave. Condo. v. CH Manhattan I, L.L.C.Opinion
October 29, 1992
Appeal from the Supreme Court, New York County (Irma Vidal Santaella, J.).
In this action for a declaratory judgment, plaintiff seeks monetary damages in the amount of $50,000 together with injunctive relief to prevent defendants from interfering with his use of his cooperative apartment to accommodate transient boarders who, in the words of the complaint, "contribute to the expenses for the maintenance, debt service and upkeep of said apartment." Plaintiff concedes that he has engaged in the practice of providing bed and breakfast accommodations since 1987.
With respect to the use to which the premises may be put, the proprietary lease provides: "The Lessee shall not, without the written consent of the Lessor on such conditions as Lessor may prescribe * * * occupy or use the apartment or permit the same or any part thereof to be occupied or used for any purpose other than as a private dwelling for the Lessee and Lessee's spouse, their children, grandchildren, parents, grandparents, brothers and sisters and domestic employees, and in no event shall more than one married couple occupy the apartment without the written consent of the Lessor. Also, the apartment may be occupied from time to time by guests of the Lessee for a period of time not exceeding one month, unless a longer period is approved in writing by the Lessor, but no guests may occupy the apartment unless one or more of the permitted adult residents are then in occupancy or unless consented to in writing by the Lessor".
Contrary to plaintiff's contentions, this language, which encompasses occupancy by members of the lessee's household and occasional guests, does not extend to business invitees whose occupancy can fairly be characterized as both transient and commercial. The reference to occupancy by "guests of the Lessee" does not contemplate persons who pay a fee to the proprietary lessee to temporarily reside in the premises as licensees.
Plaintiff's reliance on Baddour v City of Long Beach ( 279 N.Y. 167, rearg denied 279 N.Y. 794, appeal dismissed 308 U.S. 503), in which the Court of Appeals upheld the occasional and incidental use of a private residence to keep one or more boarders, is misplaced. The use to which an owner in fee simple absolute may put his house has little bearing on that to which the owner of shares in a cooperative corporation, whose residency is governed by the terms of a proprietary lease, may put his apartment (see, Matter of Levandusky v One Fifth Ave. Apt. Corp., 75 N.Y.2d 530). Having chosen the cooperative form of ownership, plaintiff is bound to abide by the rules and regulations governing its operation (see, Weisner v 791 Park Ave. Corp., 6 N.Y.2d 426, 434; Penthouse Props. v 1158 Fifth Ave., 256 App. Div. 685, 691).
Concur — Milonas, J.P., Rosenberger, Ellerin and Rubin, JJ.