15047. WATERSIDE PLAZA GROUND LESSEE, LLC, plf-ap, v. JOHN G. RWAMBUYA def-res — Belkin Burden Wenig & Goldman, LLP, New York, (Magda Cruz of counsel), for ap — Law Office of Harry Kresky, New York, for res — Order, Supreme Court, New York County (Doris Ling-Cohen, J.), entered July 10, 2014, which denied plaintiff’s motion for summary judgment, and granted defendants’ motion for summary judgment dismissing the complaint, unanimously modified, on the law, to deny defendants’ motion for summary judgment and reinstate the complaint, and otherwise affirmed, without costs.
Plaintiff (owner) is the net lessee and owner of 10 Waterside Plaza, a building within a Manhattan residential apartment complex. Defendants John G. Rwambuya and Yunia C. Rwambuya (parents) are the tenants of record of apartment 20-F (apartment) in the building. Defendant Joseph Rwambuya is their adult son (son). Owner seeks to recover the apartment based on its claim that the parents no longer occupy the premises as a primary residence. The parents concede that they no longer occupy the apartment as a primary residence. In fact, defendants all agree that the parents permanently vacated the apartment in 2000. They ague that the son has a right to succession, which under the operative law and agreements is only triggered if the tenants of record have permanently vacated. If the parents continue to use the apartment as non-primary residents, no right of succession is triggered and the owner would have the right to rescind the lease. Thus, while a typical non-primary residence dispute involves tenants claiming that they have a greater nexus to the apartment than is claimed by the owner, in this case defendants maintain that the parents’ nexus to the apartment is actually less than owner claims it is. Because we believe that there is an issue of fact as to whether the parents’ limited use of the apartment qualifies as a permanent vacatur or merely nonprimary use, we hold that the motion court erred in granting defendants’ motion for summary judgment dismissing the complaint. The disputed issue of fact, however, supports the motion court’s denial of the plaintiff’s motion for summary judgment. The building was formerly regulated under Private Housing Finance Law Article 2, commonly known as the Mitchell—Lama program. Pursuant to a settlement agreement dated July 26, 2001 (Settlement Agreement), approved by the New York City Department of Housing Preservation and Development, and so ordered by the New York State Supreme Court, the complex was converted to fair market housing. Any tenant of record who elected to accept the terms of the Settlement Agreement (settling tenant) by signing a Tenant Acceptance of Agreement form, obtained certain protections under the Rent Stabilization Law (RSL) that might not otherwise have been available to them, including the limited right to pass on their apartment to certain family members.
