Stutt v. Unique Restorations Co.

Titone, J. P., and Weinstein, J.,

dissent and vote to reverse the order insofar as appealed from and to grant so much of defendants’ motion for summary judgment as sought dismissal of the complaint insofar as asserted by plaintiffs Stutt and Rosenberg, with the following memorandum: In our view, the instant situation does not present cause to depart from the general rule that as between a tenant in occupancy and the tenant of record of that apartment, it is the latter who has exclusive right to purchase the shares allocated to the subject apartment (see Code of Real Estate Industry Stabilization Association *1041of New York City, Inc., § 61, subd 4, par [a], cl [v]; subd 5; Thuna v Di Sanza, 102 Misc 2d 342, affd 78 AD2d 517; Ian v Wassberg, 79 AD2d 919). A contrary result is not compelled by our decision in Yellon v Reiner-Kaiser Assoc. (89 AD2d 561, 563), wherein we held that in situations involving an “illusory” tenancy, a subtenant will be “accorded the full rights of tenants under thé Rent Stabilization Law and Code, including the right to purchase one’s apartment”. Examination of the facts at bar reveal substantial factual dissimilarities between this and Yellon v Reiner-Kaiser Assoc, (supra). In the latter case, proof of a scheme between the owner and the prime tenant was overwhelming. All negotiations and payments were between the subtenant and the owner of the subject building. The prime tenant apparently rented the subject apartment in order to influence the vote and secure the right to purchase the apartment in the event of a co-operative conversion, thereby evading the code in violation of subdivision A of section 62 thereof. At bar, on the contrary, there is no basis in the record from which to infer the existence of a similar fraudulent scheme. The only proof supporting plaintiffs’ theory of fraud is that an “acquaintanceship” existed between the prime tenants and the principals of the sponsor. Such proof is at best equivocal. Accordingly, Special Term erred in not granting summary judgment in defendants’ favor.