Opinion
August 25, 1988
Appeal from the Civil Court, New York County (Alice Schlesinger, J.).
Respondent tenant moved into the premises in 1939 and took occupancy without a lease. The storefront portion of the premises was a laundry and the rear portion, which was separated by a partition, contained a bedroom, kitchen and bathroom. The tenant operated the laundry in the front portion of the premises and resided in the rear continuously until 1983, when, because of advanced age and poor health, he ceased operating the laundry. Petitioner acquired the building in 1985 and commenced a dispossess proceeding, which resulted in the Civil Court finding, after a nonjury trial, that the storefront portion of the premises had been used and maintained as a commercial unit separate and apart from the residential unit since the inception of the respondent's tenancy and that petitioner was entitled to terminate the commercial tenancy on 30 days' notice.
It is now well established that where, as here, there is a question of fact concerning whether the premises at issue are being utilized for mixed residential and commercial use, the matter must be referred for determination, in the first instance, to the DHCR. (3849 Assocs. v Bonime, 137 A.D.2d 448; see, Confederated Props. v Nosek, 2 A.D.2d 383; Swift v 130 W. 57th Corp., 31 A.D.2d 925.)
Concur — Kupferman, J.P., Sullivan, Milonas and Rosenberger, JJ.