Opinion
570303/05.
Decided December 27, 2005.
Tenant appeals from a final judgment of the Civil Court, New York County (John S. Lansden, J.), entered March 16, 2005, which awarded possession to landlord upon an order granting its motion for summary judgment on the holdover petition.
Final judgment (John S. Lansden, J.), entered March 16, 2005, affirmed, with $25 costs.
PRESENT: McCOOE, J.P., DAVIS, GANGEL-JACOB, JJ
Landlord commenced this holdover summary proceeding to recover the subject rent controlled apartment on nonprimary residence grounds. Tenant acknowledges that he does not reside at the premises but rather uses the premises solely as a business office.
Tenant's defense of waiver and estoppel premised upon landlord's alleged acquiescence to tenant's use of the premises for business purposes since the inception of the tenancy is without legal merit. While parties, consistent with the purposes of rent regulation, may agree to confer rent stabilization status upon a residential tenant by contract or stipulation ( see Kent v. Bedford Apartments Co., 237 AD2d 140; West 56th and 57th Street Corp. v. Pearl, NYLJ, Nov. 30, 1993, at 33, col 2 [Mazzarelli, J.], app dismissed 242 AD2d 508), parties may not agree to exempt a premises from rent regulation through private agreements premised upon nonprimary residential occupancy ( see Draper v. Georgia Properties, 94 NY2d 809). Thus, to the extent that tenant rests upon an "agreement" evolving from landlord's long-term condonation of his occupancy as a nonprimary resident, the facts presented here are substantively indistinguishable from those of Draper and are similarly contrary to public policy. A fundamental precept of rent regulation is its application only to premises used as primary residences ( see Rima 106 v. Alvarez, 257 AD2d 201; Cier Indus. Co. v. Hessen, 136 AD2d 145, 150) and it contravenes underlying public policy objectives to permit a tenant who maintains a primary residence elsewhere to retain a rent regulated premises for personal, let alone business, convenience ( see Park Towers South Co. v. Universal Attractions, 274 AD2d 312). Upon tenant's acknowledgment that he does not occupy the premises as his primary residence, the court correctly granted summary judgment to landlord. Similarly, the Statute of Limitations is not a defense to a nonprimary residence claim since a statutory, rent controlled tenant has a continuing duty to occupy the premises as a primary resident ( see Administrative Code § 26-403[e][2][i][10]; 9 NYCRR § 2200.2[f][18]; Lenox Hill Hospital v. Spitz, 1 Misc 3d 134 [A] [2004]).
This constitutes the decision and order of the court.