CLOTHING DESIGNER’S USE MADE THE COMMERCIAL PREMISES “RESIDENTIAL”
MD – who engaged in the design and manufacture of couture clothing -- and Glebow Realty entered into a “commercial” lease agreement for a certain “loft space.” When the owner later commenced a holdover proceeding to terminate the woman’s occupancy, the New York County Civil Court ended up dismissing the litigation because it should have been brought as a “housing” case, rather than as a “commercial” dispute.
On appeal, the Appellate Term, First Department, noted that notwithstanding that the commercial nature of the governing contract, the landlord had "acquiesced” to the residential conversion and use of the premises.
In addition to the loft being furnished with a “dining room table, bed and television,” the landlord reportedly “installed a shower, stove and refrigerator, while tenant installed a sink and countertop with landlord's consent.” Landlord’s representatives also repeatedly entered the space (“approximately twenty times”) to address “a series of leaks.” Those factors reinforced that the owner had knowledge of, and consented to, the tenant’s residential occupancy.
While the landlord also thought that the court’s conduct of a special hearing (an “immediate trial”) on that discrete issue was improper, the AT1 didn’t think the landlord timely preserved that objection, since it willingly participated in the process. The appellate court was of the view that the owner wasn’t permitted to participate (hoping for favorable result), and then complain, after-the-fact, when the outcome ended up being unfavorable. As a result, the underlying determination was left undisturbed.
Any other outcome wouldn’t have been lofty.,
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DECISION