Fraydun Enter v. Ettinger

Full title: FRAYDUN ENTERPRISES, Appellant, v. ARLAN ETTINGER et al., Respondents

Court: Supreme Court, Appellate Term, First Department

Date published: Jun 16, 1977

91 Misc. 2d 119 (N.Y. App. Term 1977)

397 N.Y.S.2d 301

Opinion

June 16, 1977

Appeal from the Civil Court of the City of New York, New York County, RICHARD S. LANE, J.

Finkelstein Schwartz (Robert D. Goldstein of counsel), for appellant.

Schulman Rodney (Stephen B. Schulman of counsel), for respondents.

Per Curiam.

Final judgment entered December 14, 1976 (LANE, J.) reversed, without costs, and final judgment directed in favor of landlord as prayed for in the petition, with costs, subject, however, to the following:

Provided undertenant either permanently removes from the premises, or becomes a member of tenant's immediate family, within 60 days after service of a copy of the order entered hereon with notice of entry, issuance of the warrant is stayed until the further order of this court.

The tenant breached a substantial obligation of the tenancy by permitting undertenant, a person other than a member of his immediate family (and to whom he is presently engaged) to occupy the demised premises. The breach is material and sufficient to warrant termination of the tenancy if undertenant does not become a member of tenant's family within the time herein limited (Jema Props. v McLeod, NYLJ, June 7, 1976, p 8, col 1; One-Two East 87th St. Corp. v Rees, 35 Misc.2d 158). Nor does the record establish a waiver of the breach by landlord. If, however, undertenant becomes a member of tenant's immediate family (as appears imminent), or removes from the apartment, within the period of time herein provided, issuance of the warrant will be stayed until the further order of this court.

Concur: DUDLEY, P.J., HUGHES and RICCOBONO, JJ.