420 East Associates v. Keener

— Order and judgment (one paper) of the Supreme Court, New York County, entered August 15, 1980, granting summary judgment to the plaintiff-respondent landlord on the first cause of action for restoration of possession of an apartment in the landlord’s building, and order entered on October 3, 1980, denying renewal and reargument, reversed, on the law, and the plaintiff’s motion for summary judgment denied, without costs, and the matter remanded. The plaintiff landlord contended that an alleged assignee of an apartment in its building was not entitled to possession. The original tenant wrote to the landlord that she wished to assign her lease as she was moving to California. An application was sent for the intended assignee to complete, and it was returned to the landlord by certified mail on November 10, 1978. On December 5, the tenant assigned the lease. On December 18, the landlord sent a notice denying consent to the proposed assignment and relieved the tenant of all obligations under the lease. The assignee’s rent check was returned uncashed. The court at Special Term held, and we agree, that pursuant to section 226-b of the Real Property Law, the failure of the landlord to act within 30 days after the mailing of the request for consent was deemed to be consent. However, it went on to hold that no assignment could be validly made until the landlord had given consent or until the end of the 30-day period during which the landlord might take action on the request to assign. We find no statutory basis for the latter conclusion. The assignment can only be effective upon consent by the landlord or the expiration of the 30 days, but there is no inhibition in the statute against the assignment for whatever validity it may have. We do not pass on any other aspect of this matter. There was no cross motion, and there may be factual issues on other aspects of the situation, which do not involve section 226-b of the Real Property Law. Concur — Kupferman, J.P., Sandler, Bloom and Fein, JJ.