Opinion
October 20, 1987
Appeal from the Supreme Court, New York County (Walter M. Schackman, J.).
Plaintiffs' more than five-year occupation of the premises as prime lessees, the limited duration of the sublease and the intended temporary nature of their move to Chile clearly establish that, during the period from September 15, 1981, the date of the original sublease, to February 25, 1983, when plaintiffs purchased the premises pursuant to a cooperative conversion plan, the subject premises were plaintiffs' primary residence, and that plaintiffs' tenancy was not illusory (see, Matter of Avon Furniture Leasing v. Popolizio, 116 A.D.2d 280, 284, lv denied 68 N.Y.2d 610).
The second sublease having expired by its terms on March 14, 1985, plaintiffs are entitled to use and occupancy for the period of defendants' holdover tenancy, and the parties' stipulation as to the amount of such use and occupancy was without prejudice to any claims of the parties. Thus, plaintiffs' claim for use and occupancy should be reinstated and remanded for determination. Likewise, pursuant to the terms of plaintiffs' proprietary lease which were incorporated in the second sublease, plaintiffs are entitled to attorney's fees, and a remand is necessary to determine the reasonable amount of such fees.
Concur — Murphy, P.J., Kupferman, Sandler, Sullivan and Kassal, JJ.