(dissenting). I would reverse.
In this action seeking to recover rent overcharges on a rent-stabilized apartment on Central Park West, where the defen*461dant landlord has raised affirmative defenses and counterclaims based upon the claim that the subject apartment was not plaintiffs primary residence, summary judgment should not have been granted without affording defendant the opportunity to conduct its previously demanded discovery on the issue, which in many respects is peculiarly within plaintiffs knowledge (CPLR 3212 [f]; see generally, Cox v J.D. Realty Assocs., 217 AD2d 179).
First, it should be noted that plaintiffs motion for summary judgment was made 10 days after the date of defendant’s discovery notices, which were served with its answer. Second, the selective documentation offered by plaintiff does not, in my opinion, constitute such "clear evidence”, as found by the IAS Court, of primary residency or "clearly show”, as stated by the majority, that plaintiff "has continuously resided in the Apartment as her primary and only residence since the inception of the Lease” in 1991.
Nothing in this documentary evidence negates plaintiff’s own statements in her 1991 lease application and rider, when represented by an attorney who "provided her with assistance” and "received” the proposed lease for his "review”, that her primary residence was at her parents’ home in Woodstock, that her present New York City apartment was at 105 West 89th Street and that the Central Park West apartment was to be a nonprimary residence.
This Court recently affirmed the dismissal of two rent-stabilized tenants’ actions for rent overcharges based upon the fact that they had previously entered into stipulations of settlement whereby they became rent-stabilized tenants, albeit at higher than rent-stabilized rents (Blum v Graceton Estates, 228 AD2d 274; Kent v Bedford Apts. Co., — AD2d —, 1997 NY Slip Op 02099 [1st Dept, Mar. 11, 1997]). The rationale in those cases was that the tenants had the option of foregoing the stipulations and taking their chances on getting a rent-stabilized lease in court or signing the stipulation to their "advantage”. In Kent (supra, at —), despite the prohibition in Rent Stabilization Code ([RSC] 9 NYCRR) § 2520.13, relied upon by the majority, this Court perceived "no public policy or other reason for disregarding that choice, made with advice of counsel”. It also stated that inasmuch as "plaintiff had not yet been established as a rent-stabilized tenant at the time she entered into the stipulation, [she] thus cannot rely on.that provision” (supra, at —).
*462Such holding, that at the time of her stipulation the then holdover tenant had not attained the status of a rent-stabilized tenant entitled to the benefits or protections of the Code, would seem to accord with RSC § 2520.11 which provides, in pertinent part, that the RSC "shall apply to [regulated] housing accommodations * * * for so long as they maintain the status indicated below * * * (k) housing accommodations which are not occupied by the tenant, not including subtenants or occupants, as his or her primary residence as determined by a court of competent jurisdiction”.
In support of her claim of willfulness, plaintiff calls our attention to two cases involving tenants in her building where the landlord, prior to entering into nonprimary leases with the prospective tenants, commenced declaratory judgment actions seeking to declare the apartments exempt from rent stabilization during the terms of those prospective tenants. Such tenants then signed consent judgments which were thereafter entered by the court; thus, the tenants obtained non-rent-stabilized leases with no right of renewal except on terms agreed to by the parties and exempt from rent stabilization.
While the parties here entered into the lease without benefit of such a prior court determination, I cannot see a practical difference between those cases and the present one except that here the landlord and the tenant lived happily pursuant to the terms of their agreement for four years through two leases and it was only when it was time to renew the lease for a second time and the four-year Statute of Limitations (measured from the date of the first alleged overcharge [RSC § 2526.1 (a) (2)]) was about to expire and plaintiff had accrued over $200,000 in alleged rent overcharges (including treble damages for two years) that plaintiff cried foul. The result, as it presently stands, is that plaintiff gets a rent-stabilized apartment plus a $200,000 bonus for entering into her original lease, while represented by counsel, on her clear statement that this was not to be her primary residence. At the very least, it can be reasonably argued that the apartment may not have been her primary residence for the first or even second year of her original lease, but became such after her son began school.
The prohibition in RSC § 2525.3 (b) merely provides that "[n]o owner or other person shall require a tenant, prospective tenant or a prospective permanent tenant to represent or agree as a condition of renting a housing accommodation that the housing accommodation shall not be used as the tenant’s or prospective tenant’s primary residence” (emphasis added). *463That, in and of itself, does not seem to prevent the insertion of such a provision in a lease where the inclusion of such language was suggested by the prospective tenant; the majority’s reliance upon the rental agent’s memorandum regarding " '[a] condition of this lease’ ” and its statement that "[t]he Landlord does not endeavor to explain this letter” is not dispositive of the issue. That memorandum was submitted as an exhibit to plaintiff’s reply affidavit and, when read in context,* does not definitely support the claim that the landlord "required” the nonprimary residence clause as a condition of the lease.
For instance, what is to be done if a hypothetical Hollywood producer approaches the landlord of a rent-stabilized building overlooking Central Park and says that she needs a pied-aterre in Manhattan; that her primary residence is in California; that she likes the building or apartment; and that money is no object.
The present, apparently officially sanctioned procedure, as reflected in this record, is for the landlord to obtain what is, in essence, an advisory opinion that it is all right to give the producer a non-rent-stabilized lease by having the court enter a consent judgment based upon the parties’ agreement that the apartment is not to be the producer’s primary residence. Here, defendant landlord argues that the only difference is that, rather than obtaining prior court approval for the lease, it is seeking a court determination that the apartment was not going to be plaintiff’s primary residence after the issue of the validity of their 1991 lease agreement was raised for the first time by plaintiff’s 1995 rent overcharge claim. Prior to 1995, the landlord, if what it says about plaintiff’s representations at the time is borne out, would have had no reason to question the issue of plaintiff’s primary residence. Primary residence issues are generally raised by landlords only when they discover that tenants who are paying lower rent-stabilized rents do not occupy the apartment as their primary residences.
If the present lease violates public policy, even if defendant is able to prove that plaintiff voluntarily and truthfully made her 1991 representations of nonpermanent residency, it would seem that consent judgments entered by a court on identical representations would also violate public policy. However, as previously noted in Kent (supra), no public policy issue was *464found and it appears that nowhere do the statutes in question dictate whether an owner may choose to rent or not to rent to primary or nonprimary tenants, as the case may be.
The claim of duress raised by plaintiff was also raised in Kent (supra), where the IAS Court (Ramos, J.) rejected it, stating: "She has failed to explain why she did nothing those seven years. A party who executes a contract for any considerable length of time ratifies the contract (see, Sheindlin v Sheindlin, 88 AD2d 930). Even if she could show duress, her delay resulted in ratification.” The same can be said here, where, even if plaintiff (who was represented by counsel) felt coerced into signing the first lease because of the prospect of not getting the apartment, the same could not be said two years later when she signed the identical renewal lease.
Therefore, since the public policy issue is unclear on the present record and there is a factual dispute as to whether plaintiff willingly entered into the nonprimary residence lease, summary judgment should be denied subject to renewal after the completion of discovery. Moreover, inasmuch as defendant landlord questions the construction or validity of RSC § 2525.3 (b), the IAS Court may, at any stage, certify such fact to the Division of Housing and Community Renewal, the agency charged with the responsibility for administering the Code, which may intervene in any such action or proceeding (Emergency Tenant Protection Act of 1974 [L 1974, ch 576, § 4] § 12 [a] [7], as added by L 1983, ch 403, § 4). Given the seemingly uncertain state of the law on the subject, such certification should be made in this action.
Milonas, J. P., and Williams, J., concur with Tom, J.; Wallace and Andrias, JJ., dissent in a separate opinion by Andrias, J.Order and judgment (one paper), Supreme Court, New York County, entered April 9, 1996, affirmed, without costs and disbursements.
It begins: "Per Pamela’s request, attached is a copy of the lease she would like to sign for a new apartment. I assume she would like you to review it.”