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JONATHAN EINHORN, petl-and-res, v. CARLTON MCCLOUD, restent -AND- NICKY SUNSHINE A/K/A MAYA MARTIN, res-app

16-124. JONATHAN EINHORN, petl-and-res, v. CARLTON MCCLOUD, restent -AND- NICKY SUNSHINE A/K/A MAYA MARTIN, res-app — Final judgment (Jack Stoller, J.), entered on or about January 26, 2015, insofar as appealed from, modified to vacate so much thereof as awarded landlord possession as against respondent Nicky Sunshine and to dismiss the petition as against her; as modified, final judgment affirmed, without costs.

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16-124. JONATHAN EINHORN, petl-and-res, v. CARLTON MCCLOUD, restent -AND- NICKY SUNSHINE A/K/A MAYA MARTIN, res-app — Final judgment (Jack Stoller, J.), entered on or about January 26, 2015, insofar as appealed from, modified to vacate so much thereof as awarded landlord possession as against respondent Nicky Sunshine and to dismiss the petition as against her; as modified, final judgment affirmed, without costs.

The evidence adduced at trial established that appellant Nicky Sunshine continuously resided in the subject hotel dwelling unit for at least six months; landlord was aware of her occupancy and allowed her to make substantial renovations to the premises; and landlord accepted rent checks from a joint bank account bearing appellant’s name. Thus, appellant qualified as a permanent tenant under Rent Stabilization Code [9 NYCRR] §2520.6[j]; see 25 W. 24th St. Realty Corp. v. Gianquinto, 55 Misc 3d 28 [App Term, 1st Dept 2017]; Kanti-Savita Realty Corp. v. Santiago, 18 Misc 3d 74 [App Term, 2nd Dept 2007]). Any failure of appellant’s former attorney to specifically assert in the responsive pleading a claim to possession as a permanent tenant does not preclude our determination of the issue in the particular circumstances present, where landlord admitted in the pleadings and at trial that the premises are subject to Hotel Stabilization, and that appellant resided in the premises since early 2011. The matter involves a legal argument which appeared on the face of the record and which could not have been avoided if raised initially (see Henry Phipps Plaza S. Assoc. Ltd., Partnership v. Quijano, 137 AD3d 602 [1st Dept 2016], revg for reasons stated in dissenting op. of Schoenfeld, J., 45 Misc 3d 12 [Appellate Term, 1st Dept 2014]).

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