Opinion
December 16, 1993
Appeal from the Supreme Court, New York County (Carol Arber, J.).
The court properly granted defendant landlord's motion for judgment declaring defendant Teeman to be the primary tenant of the subject rent stabilized apartment she had sublet to plaintiffs many years earlier, there being no showing that the landlord ever waived its right to contest plaintiffs' occupancy (see, Jefpaul Garage Corp. v Presbyterian Hosp., 61 N.Y.2d 442) or otherwise recognized plaintiffs as the tenants (see, Metropolitan Life Ins. Co. v Sucdad, NYLJ, Aug. 6, 1985, at 6, col 1 [App Term, 1st Dept]). At most, the landlord's failure to respond to Teeman's letter notifying it of her intention to sublet (Real Property Law § 226-b) constituted a waiver of its right to terminate Teeman's tenancy for an unauthorized occupancy, without creating any parallel rights in plaintiffs (see, Papadaopoulos v Park W. Vil. Assocs., NYLJ, Sept. 24, 1986, at 11, col 6 [Sup Ct, N Y County]).
Plaintiffs argument that they are entitled to primary tenancy status because Teeman's tenancy was illusory was not raised in the IAS Court and thus may not be argued on appeal (see, Pipe Welding Supply Co. v Haskell, Conner Frost, 61 N.Y.2d 884, 886). Denial of consolidation was clearly appropriate given a resolution of the primary tenancy issue, and the relief sought by Teeman was properly left unaddressed in the absence of a motion requesting such relief. The causes of action for ejectment and the application for counsel fees are severed and remanded for further proceedings.
Concur — Wallach, J.P., Kupferman, Ross, Kassal and Nardelli, JJ.