113 A.D.2d 691 | N.Y. App. Div. | 1986
OPINION OF THE COURT
Susan K. Deri, the tenant of record of a rent-stabilized apartment at 235 West 72nd Street in Manhattan under a lease that was not to expire until September 30, 1985, died on February 16, 1983. A widow, she had lived alone. On May 16, 1983, her son, Peter Deri, as executor of her estate, wrote to the landlord’s agent, seeking its written consent to an assignment of the subject apartment to himself pursuant to Real Property Law § 226-b. As is clear from his letter, the son was then residing at 320 West 87th Street.
By letter dated May 25, 1983, the agent’s attorneys rejected the son’s request, advising him that Real Property Law § 236, not § 226-b, applied, and that the landlord was prepared to release the estate from the balance of its lease obligations upon the surrender of the apartment; cautioning him that no one should be permitted to occupy the apartment as that would constitute a breach of a substantial obligation of the tenancy; and, notifying him that, pursuant to Real Property Law §236, the landlord was electing to terminate the lease, effective June 30, 1983, or an earlier date on which the parties might agree. Despite the rejection of his request and the landlord’s notification of its election to terminate the estate’s leasehold interest, the son and his family took physical possession of the apartment shortly thereafter.
Appellate Term reversed the judgment and dismissed the petition (127 Misc 2d 26). Although expressly finding that Real Property Law § 236 was controlling and that, pursuant thereto, the landlord had the right unreasonably to withhold its consent to the proposed assignment, the court nevertheless deemed the landlord’s holdover proceeding premature since the estate was not seeking to relinquish possession before the lease’s expiration but, instead, was willing to continue to fulfill its leasehold obligations. Thus, Appellate Term concluded, the lease should not be deemed terminated. This court granted leave to appeal. We reverse and reinstate the Civil Court judgment.
It is of course true, as Appellate Term noted, that a lease for a term of years is not terminated by the lessee’s death prior to the lease’s expiration. (Remford Corp. v Rosenfeld, 274 App Div 769; Schnee v Jonas Equities, 109 Misc 2d 221 [App Term, 2d Dept]; 2. Rasch, New York Landlord and Tenant Summary Proceedings § 1016 [2d ed].) In such cases the leasehold interest passes as personal property to the estate (EPTL 13-1.1), which remains liable for the payment of rent. (Schnee v Jonas Equities, 109 Misc 2d, at p 222.) Thus, an executor has the right, until the expiration of the lease, to possession of the
The right of the estate of a deceased tenant to assign or sublet is exclusively controlled by Real Property Law § 236,
An estate is clearly a legal entity separate and distinct from that of an executor acting in his individual capacity. As this court noted in Remford Corp. v Rosenfeld (274 App Div, at p 770), "While the executors were justified in holding on to the premises in their representative capacity until the expiration of the original term, this did not operate as an assignment or subletting in contravention of the specific terms of the lease. Whatever rights the executors acquired were solely in their representative capacity.” Similarly, in the instant case, the son, in his individual capacity, was not entitled, without the landlord’s consent, to occupy the apartment of the deceased tenant with his family. Furthermore, since he did not occupy the apartment contemporaneously with his mother, the tenant, prior to her death, he cannot, in his individual capacity, assert any possessory right to the apartment.
Although the lease extension agreement executed by the deceased tenant expired on September 30, 1985, this proceed
Accordingly, the order of the Appellate Term of the Supreme Court, First Department, entered February 1, 1985, reversing a judgment of the Civil Court, New York County (Jose Ramos-Lopez, J.), entered June 4, 1984, upon an order which granted petitioner’s motion for summary judgment and denied respondent’s cross motion for summary judgment, should be reversed, on the law, with costs and disbursements, and the judgment of the Civil Court reinstated.
Carro, Fein, Lynch and Rosenberger, JJ., concur.
Order, Appellate Term, Supreme Court, First Department, entered on February 1, 1985, unanimously reversed, on the law, and the judgment of the Civil Court reinstated. Appellant shall recover of respondents one bill of $75 costs and disbursements of this appeal.
. "236. Assignment of lease of a deceased tenant
"Notwithstanding any contrary provision contained in any lease hereafter made which affects premises demised for residential use, or partly for residential and partly for professional use, the executor, administrator or legal representative of a deceased tenant under such a lease, may request the landlord thereunder to consent to the assignment of such a lease, or to the subletting of the premises demised thereby * * * If the landlord consents, said lease may be assigned in accordance with the request provided a written agreement by the assignee assuming the performance of the tenant’s obligations under the lease is delivered to the landlord in form reasonably satisfactory to the landlord, or the premises may be sublet in accordance with the request, as the case may be, but the estate of the deceased tenant, and any other tenant thereunder, shall nevertheless remain liable for the performance of tenant’s obligations under said lease. If the landlord terminates said lease or unreasonably refuses his consent, said lease shall be deemed terminated, and the estate of the deceased tenant and any other tenant thereunder shall be discharged from further liability thereunder as of the last day of the calendar month during which the landlord was required hereunder to exercise his option. If the landlord reasonably refuses his consent, said lease shall continue in full force and effect, subject to the right to make further requests for consent hereunder.”
. In this regard, we take note of Sullivan v Brevard Assoc. (66 NY2d 489), where the court held that even a relative in contemporaneous occupancy with the tenant of record of a rent-stabilized apartment was not entitled to a renewal lease.
. We were so advised on oral argument, which took place subsequent to the lease’s expiration.