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420 Riverside Drive v. Ettinger

Appellate Term of the Supreme Court of New York, First Department. Term
May 29, 2003
196 Misc. 2d 107 (N.Y. App. Term 2003)

Opinion

23599

May 29, 2003.

Tenant appeals from an order of the Civil Court, New York County, dated June 26, 2002 (Karen S. Smith, J.) granting landlord's motion for summary judgment in consolidated commercial holdover proceedings. 420 Riverside Drive v Ettinger, 2002 N.Y. Slip Op 50414(U), affirmed.

Breier, Deutschmeister, Urban Fromme, P.C., New York City (Jason S. Deutschmeister of counsel), for appellant.

Santo Golino, New York City, for 420 Riverside Drive, respondent.

PRESENT: HON. LUCINDO SUAREZ, P.J., HON. WILLIAM J. DAVIS, HON. MARTIN SCHOENFELD, Justices.


Order dated June 26, 2002 (Karen S. Smith, J.) affirmed, with $10 costs.

In these holdover proceedings consolidated for disposition below, landlord, a cooperative corporation, seeks to recover two cellar spaces leased to Thomas Ettinger, who is also the non-purchasing rent controlled tenant of two joined eleventh floor apartments in the building. Civil Court properly rejected tenant's argument that the cellar spaces are subject to rent regulation because he used them as "ancillary living space" appurtenant to the rent controlled apartments. The rooms at issue are designated as storage space on the certificate of occupancy and lack kitchen or bathroom facilities. They are clearly not physically appurtenant to the controlled apartments and were demised under leases (now expired) which made no reference to the apartments to which they are ostensibly connected. Tenant makes separate rent payments for the residential and basement spaces. As correctly stated by the motion court, coverage under a rent regulatory scheme is a matter of statutory right and cannot be created by waiver or estoppel (see, Ruiz v Chwatt, 247 A.D.2d 308). Tenant could not, by his use of the cellar premises for storage, workspace or recreational activities, confer regulated status upon separate and distinct nonresidential space that was not equipped or leased as a housing accommodation (see, 129 East 56th Street Corp. v Harrison, 122 Misc.2d 799). Accordingly, a possessory judgment was properly granted after service of the appropriate termination notices.

We have considered tenant's other arguments and find them lacking in merit.


Summaries of

420 Riverside Drive v. Ettinger

Appellate Term of the Supreme Court of New York, First Department. Term
May 29, 2003
196 Misc. 2d 107 (N.Y. App. Term 2003)
Case details for

420 Riverside Drive v. Ettinger

Case Details

Full title:420 RIVERSIDE DRIVE, Petitioner-Landlord-Respondent, v. THOMAS ETTINGER…

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

Date published: May 29, 2003

Citations

196 Misc. 2d 107 (N.Y. App. Term 2003)

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