Opinion
March 28, 1989
Appeal from the Surrogate's Court, New York County (Marie Lambert, S.).
Petitioners are the executors of the estate of Nathan Silverstein (decedent). At the time of his death the decedent was a tenant in apartment 11-J at 140 West End Avenue in New York County pursuant to a lease dated March 7, 1977 and subsequently extended to March 31, 1987 pursuant to the rent stabilization laws. Subsequent to decedent's death, a plan to convert the building to cooperative ownership was approved for filing by the Attorney-General.
Petitioners allege that because the cooperative conversion plan was distributed prior to the death of the decedent and even though it had not been approved for filing by the Attorney-General, they are entitled to purchase the shares allocated to the apartment in question. Recently, this court decided Matter of Rubinstein v. 160 W. End Owners Corp. ( 145 A.D.2d 390), and, on facts similar to those here, rejected the petitioner's argument that he was entitled to purchase the shares of a deceased tenant. This court held "the exercise of insider rights mandates the addition of a factor other than merely the existence of a landlord-tenant relationship; there must be actual use and possession of the premises at the time that the plan is accepted for filing." (Supra, at 392.)
The Rubinstein case (supra) is controlling here and mandates reversal.
Concur — Murphy, P.J., Asch, Rosenberger, Smith and Rubin, JJ.