Opinion
570401/04.
Decided September 9, 2005.
Landlord, as limited by its brief, appeals from that portion of an order of the Civil Court, New York County, dated February 11, 2003 (Kevin C. McClanahan, J.) which denied its cross motion for summary judgment in a holdover summary proceeding.
Order dated February 11, 2003 (Kevin C. McClanahan, J.) modified to grant summary judgment to tenant dismissing the petition; as modified, order affirmed, with $10 costs to tenant-respondent.
PRESENT: HON. WILLIAM P. McCOOE, J.P., HON. WILLIAM J. DAVIS, HON. PHYLLIS GANGEL-JACOB, Justices.
"While profiteering under a sublease is illegal ( see 520 E. 81st St. Assocs. V Roughton-Hester, 157 AD2d 199), there exists no provision in the rent control regulations equivalent to Rent Stabilization Code (9 NYCRR) § 2525.7, which prohibits charging a roommate a disproportionate share of the legal rent ( see 270 Riverside Dr. v. Braun, 4 Misc 3d 77)." ( Ishida v. Markowicz, 18 AD3d 502.) On the undisputed record evidence, which conclusively establishes that the apartment sharing arrangements made by tenant created roommate, not sublet situations in the demised rent controlled premises, no possessory cause of action is available to the landlord. Although tenant did not file a notice of appeal from the denial of her dismissal motion below, this Court can search the record and grant summary judgment to a non-appealing party ( Merritt Hill Vineyards v. Windy Hgts. Vineyard, 61 NY2d 106, 110-112).
This constitutes the decision and order of the court.