129 Misc. 2d 211 | N.Y. City Civ. Ct. | 1985
OPINION OF THE COURT
The novel issue which is raised in this holdover proceeding is whether the respondent, until recently the building superintendent, is entitled to retain possession of his apartment because his father, the prior superintendent of the building from 1933 until his death, originally entered into possession of that apartment as a tenant.
During the winter of 1933, respondent, with his father and family, moved into an apartment at 56 Henry Street (apartment 4), New York, New York. The respondent’s father took possession solely as a rent-paying tenant. Some months later, during the spring of 1933, the respondent’s father was employed by the petitioner’s predecessor in interest as the superintendent of the building in which the apartment was located. The compensation for his services was the rent-free use of the apartment and an initial salary of $12 per month. The respondent’s father remained in his capacity of superintendent until
On May 8, 1957, the apartment was exempted from rent control so long as a superintendent was in occupancy under New York State Rent and Eviction Regulations (9 NYCRR) § 2100.10 (b). Similarly, on June 6, 1962, the same determination was made pursuant to New York City Rent and Eviction Regulations § 2 (g) (3) (in McKinney’s Uncons Laws of NY).
At some time in 1984, after purchasing the apartment house, the petitioner terminated respondent’s employment. The petitioner commenced the instant summary holdover proceeding on February 14, 1985. Both parties have moved for summary judgment and assert that there are no issues of fact.
Petitioner landlord concedes that the respondent’s father’s right to occupy the apartment would have continued to exist had he been terminated as a superintendent because he originally entered into occupancy as a tenant. Applicable case law uniformly supports this conclusion.
If the occupancy of an apartment is incidental to the superintendent’s service or is required expressly or impliedly by the employer, a landlord-tenant relationship generally does not exist (Weisberg v Cohen, 129 App Div 496, 497 [1908]; Tursi v Esposito, 194 Misc 498, 499 [NY City Mun Ct 1949]; 1 New York Law of Landlord and Tenant § 79, at 139 [1937]). However, where a landlord-tenant relationship already exists, it is not destroyed when the tenant is subsequently engaged as a superintendent (Filmat Realty Corp. v Carleo, 186 Misc 717, 719 [Sup Ct, NY County 1946]; Mayer v Norton, 62 Misc 2d 887, 888 [Civ Ct, NY County 1970]; Cosvira Realty Corp. v Hertelendy, 61 NYS2d 283, 284 [NY City Mun Ct 1946]). The subsequent master-servant relationship may exist independently and concurrently with the continuing landlord-tenant relationship (Mayer v Norton, 62 Misc 2d, at p 888; Cosvira Realty Corp. v Hertelendy, 61 NYS2d, at p 285). Further, the landlord-tenant relationship survives the termination of the master-servant relationship (Filmat Realty Corp. v Carleo, 186 Misc. at p 719; York Sham Wong Yee v Indelicato, 67 Misc 2d 634, 636 [Civ Ct, NY County 1971]) and the tenant retains the same tenancy rights he received upon his original possession.
There are circumstances where some courts have found that a tenant exchanged his status for that of an employee and the landlord-tenant relationship was ended. (Marsar Gardens v
Respondent contends that upon the death of his father, as a remaining family member who had been living with the prime tenant prior to his death, the respondent is entitled to possession of the apartment in his own right. Petitioner, on the other hand, claims that since the respondent had never been a tenant, he obtained, at the time of his father’s death, the same status as any other newly hired superintendent who receives a rent-free apartment as partial or full compensation for his services. Thus, petitioner contends that the apartment was merely incidental to the respondent’s employment and that upon the termination of his employment, his right to occupy the apartment is extinguished since the respondent is not a tenant.
This court finds that because the respondent’s father died as a tenant, and due to the respondent’s continuous cohabitation and his relationship to the previous tenant (his father), the respondent has the right to retain possession of the apartment. New York City Rent and Eviction Regulations § 56 (d) bars eviction where the remaining occupant is a surviving spouse or other member of the deceased tenant’s family who has been living with the tenant.
The court’s reasoning in Hartman (supra) was followed in Yee Fong Toy v Garone (Civ Ct, NY County, L&T No. 106393/79 [1979]). There the petitioner’s parents had taken possession of the apartment in question as tenants in 1915. Petitioner’s father and later her mother subsequently became superintendents of the premises. After her mother could no longer perform the duties of the job, petitioner became the superintendent. After terminating the petitioner’s employment, the respondents sought to evict her. The court ruled that the petitioner tenant was entitled to remain in possession of her apartment.
The reasoning in Hartman and Garone (supra) correctly reflects the principle of the separate and independent relationships of landlord-tenant and master-servant. In the instant proceeding, the facts indicate that the respondent’s performance of the services as a superintendent was unrelated to the occupancy which, in fact, was derived from his father’s status as a tenant. It would be fallacious to maintain that the right of a family member to retain possession after the death of his or her parent(s), as protected by New York City Rent and Eviction Regulations § 56 (d), is nullified simply because
Petitioner contends that this finding would be tantamount to granting hereditary rights to superintendents qua superintendents. This court makes no such determination. It has been established that a superintendent who occupies an apartment solely as an incident to his employment loses his right to occupy the apartment when his employment is terminated (Weisberg v Cohen, 129 App Div, at p 497; Tursi v Esposito, 194 Misc. at p 499). In such a case, it is clear that a landlord could commence a summary holdover proceeding against the terminated superintendent pursuant to RPAPL 713 (11).
Finally, petitioner contends that since the respondent was not a superintendent of the premises between the period of the enactment of the rent control laws and the death of the respondent’s father, the respondent is not entitled to the protection of the rent laws and regulations. This contention is without merit.
The apartment in question was exempted from rent control pursuant to New York City Rent and Eviction Regulations § 2 (g) (3) and New York State Rent and Eviction Regulations § 10 (b). This exemption exists only so long as the "[djwelling space [is] occupied by * * * superintendents * * * to whom the space is provided as part or all of their compensation without payment of rent and who are employed for the purpose of rendering services in connection with the premises of which the dwelling space is a part.” (New York City Rent and Eviction Regulations § 2 [g] [3]; New York State Rent and
The respondent is a tenant of the subject apartment and is entitled to continued occupancy as a rent-controlled tenant. Accordingly, respondent’s motion for summary judgment is granted. Petitioner’s cross motion for summary judgment is denied. Petition is dismissed.
. Section 56 (d) states: "No occupant of housing accommodations shall be evicted under this section where the occupant is either the surviving spouse of the deceased tenant or some other member of the deceased tenant’s family who has been living with the tenant.”
. Section 713 reads, in pertinent part:
"Grounds where no landlord-tenant relationship exists "A special proceeding may be maintained under this article after a ten-day notice to quit has been served upon the respondent in the manner prescribed in section 735, upon the following grounds * * *
"11. The person in possession entered into possession as an incident to employment by petitioner, and the time agreed upon for such possession has expired or, if no such time was agreed upon, the employment has been terminated; no notice to quit shall be required in order to maintain the proceeding under this subdivision.”