Order (Arlene H. Hahn, J.), dated January 30, 2015, affirmed, without costs.
This holdover summary proceeding, based upon allegations that tenants' fair market lease agreement expired by its terms, is not susceptible to summary disposition, since the record now before us presents mixed questions of law and fact as to the rent regulatory status of the apartment premises.
While both parties have framed the issue as whether the apartment is subject to, or exempt from, rent stabilization, among the issues requiring resolution at trial are whether the apartment, which tenants purportedly occupied since 1962 (prior to the 1969 enactment of the Rent Stabilization Law) is rent controlled, or subject to rent stabilization pursuant to the Emergency Tenant Protection Act of 1974 (see Matter of Sandow v. State of N.Y. Div. of Hous. & Community Renewal, 78 AD3d 530  ), but temporarily exempt because it was occupied by then-owner, Charles Lemma, the tenant herein.
In addition, (1) assuming the premises are rent controlled, there are unresolved issues as to whether the transaction at issue-where, upon Lemma's sale of the building for substantial consideration, he was permitted to remain in occupancy pursuant to a fair market lease-was enforceable (see Merwest Realty Corp. v. Prager, 264 A.D.2d 313  ; Eckstein v. New York Univ., 270 A.D.2d 208 , lv denied 95 N.Y.2d 760  ), or, (2) assuming the premises was rent stabilized but temporarily exempt, whether, upon the sale of the building and expiration of the temporary exemption, a vacancy by operation of law occurred (see Matter of Ogunrinde v. New York State Div. of Hous. & Community Renewal, 2010 N.Y. Slip Op 33350[U] [Sup Ct, N.Y. County 2010, Gische, J.], affd 110 AD3d 441  ), creating a statutory basis for high rent deregulation (see Matter of Hatanaka v. Lynch, 304 A.D.2d 325  ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Hon. Doris Ling–Cohan, Concurring Opinion.
I concur that the lower court should be affirmed, as there are clearly triable issues of material facts, warranting a denial of the motion and cross-motion for summary judgment. However, while my colleagues cite to Matter of Sandow v. State of N.Y. Div. Of Hous. & Community Renewal (78 AD3d 530 [1st Dept 2010] ), Merwest Realty Corp. v. Prager (264 A.D.2d 313  ), Eckstein v. New York Univ . (270 A.D.2d 208 , lv denied 95 N.Y.2d 760  ), Matter of Ogunrimde v. New York State Div. Of Hous. & Community Renewal (2010 N.Y. Slip Op 33350[U][Sup Ct, N.Y. County 2010, Gische, J.], affd 110 AD3d 441  ) and Matter of Hatanaka v. Lynch (304 A.D.2d 325  ), for various legal propositions, I note that none of the above indicated cases directly stand for the legal principles stated by the majority and were not cited by either of the parties, on this appeal. For example, Matter of Ogunrimde v. New York State Div. of Hous. and Community Renewal, supra, cited by the majority for the proposition of the creation of “a vacancy by operation of law”, never uses such words, and involved a unit that was occupied by transients, prior to the subject tenancy. As a further example, Matter of Hatanaka v. Lynch, supra, cited for “creating a statutory basis for high rent deregulation”, also does not use such words in the body of the decision and concerned the occupation of a unit by an educational institution.