Opinion
August 25, 1986
Appeal from the Supreme Court, Queens County (Levine, J.).
Order affirmed insofar as appealed from, with costs.
In 1977, the defendant United Cerebral Palsy Association of New York State, Inc. (hereinafter UCP), entered into a lease with the plaintiff for a certain apartment in Queens. The apartment is being used by UCP as a group home for several severely retarded clients. The plaintiff has previously renewed UCP's leases pursuant to the mandates of the New York City Rent Stabilization Law, but contends that it need not renew the present lease upon its expiration because UCP, the tenant of record, is not using the apartment as its primary residence.
The New York City Rent Stabilization Law provides that a landlord must offer a renewal lease to the tenant of a rentstabilized apartment unless the apartment is not being used as the tenant's primary residence (see, Administrative Code of City of New York § YY51-6.0 [c] [4]; see, Sullivan v Brevard Assoc., 66 N.Y.2d 489). However, when a corporation enters into a lease which contemplates occupancy of the apartment by an individual, the relevant inquiry is whether the apartment is being used as a primary residence by the individual, not the corporation (see, Koenig v Jewish Child Care Assn., 107 A.D.2d 542, affd 67 N.Y.2d 955; Matter of Cale Dev. Co. v Conciliation Appeals Bd., 94 A.D.2d 229, affd 61 N.Y.2d 976).
Special Term properly found that several factual issues exist precluding the granting of summary judgment (see, Sillman v Twentieth Century-Fox Film Corp., 3 N.Y.2d 395). These factual issues include the question of the plaintiff's knowledge that the apartment was to be used as a group home which would support a finding that by previously renewing the lease pursuant to the statute it has waived its right to now claim that the residence is exempt from the statute (see, Sullivan v Brevard Assoc., supra; Fisher v Fountain House, 127 Misc.2d 943, affd 118 A.D.2d 1054). Additionally, a question of fact exists as to whether the apartment, in fact, is being used as the primary residence of the residents. Brown, J.P., Niehoff, Rubin and Kunzeman, JJ., concur.