Not overruled or negatively treated on appealinfoCoverage
Appellate Division of the Supreme Court of New York, First DepartmentDec 12, 2006
35 A.D.3d 232 (N.Y. App. Div. 2006)
35 A.D.3d 232826 N.Y.S.2d 2212006 N.Y. Slip Op. 9303

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No. 9785.

December 12, 2006.

Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered April 10, 2006, which denied plaintiff landlord's motion for summary judgment on its cause of action for a declaration that defendant is not a rent stabilized tenant, or, in the alternative, to strike defendant's jury demand, and denied defendant's cross motion for summary judgment declaring that she is a rent stabilized tenant, unanimously affirmed, without costs.

Borah, Goldstein, Altschuler, Schwartz Nahins, P.C., New York (Jeffrey R. Metz of counsel), for appellant-respondent. Hughes Hubbard Reed LLP, New York (Jeffrey M. Greilsheimer of counsel), for respondent-appellant.

Before: Saxe, J.P., Sullivan, Williams, Sweeny and Malone, JJ.

Although tenant commenced occupancy in 1991, after the Loft Law window period had closed without the subject unit having been registered with the Loft Board, the applicable Zoning Resolution (Tribeca Mixed Use District) permits residential use of "loft dwellings," which the subject building admittedly is, and does not expressly require that such dwellings be covered by the Loft Law. In fact, a temporary residential certificate of occupancy covering the unit was obtained by landlord in 2002, in accordance with the parties' 2001 agreement (see 8 AD3d 193). It therefore appears that the unit is capable of being legalized, and may therefore be subject to rent stabilization ( cf. Wolinsky v Kee Yip Realty Corp., 2 NY3d 487, 493; see 480-486 Broadway, LLC v No Mystery Sound, Inc., 11 Misc 3d 1056[A], 2006 NY Slip Op 50236[U], *4-5 [2006]; but see Gloveman Realty Corp. v Jefferys, 18 AD3d 812 [2d Dept 2005]). Trial by jury was not waived by the jury waiver clause in the rent stabilized lease that was never executed, or the jury waiver clause covering only summary proceedings, not an ejectment and declaratory judgment action such as this, in the expired nonresidential lease. Since ejectment is an action at law ( Rima 106 v Alvarez, 257 AD2d 201, 207), defendant is entitled to a jury trial. The declaratory relief that tenant seeks as to her rent stabilized status, though equitable, is not a defense like waiver, estoppel, laches or unclean hands, but merely a mirror to landlord's unnecessary claim for declaratory relief on the same issue.

[ See 12 Misc 3d 1154(A), 2006 NY Slip Op 50895(U) (2006).]

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