| 191 Chrystie LLC v Ledoux |
| 2011 NY Slip Op 02545 [82 AD3d 681] |
| March 31, 2011 |
| Appellate Division, First Department |
| 191 Chrystie LLC, Appellant-Respondent, v Barry Ledoux,Also Known as Barry Sonnier, Respondent-Appellant. |
—[*1] Grimble & LoGuidice, LLC, New York (Robert Grimble of counsel), forrespondent-appellant.
Order and judgment (one paper), Supreme Court, New York County (Martin Shulman, J.),entered December 30, 2009, which, in this declaratory judgment action by plaintiff-owner todetermine whether defendant is a protected tenant of the subject premises under MultipleDwelling Law article 7-C (Loft Law), granted plaintiff's motion for summary judgment insofar asit sought dismissal of defendant's second counterclaim for attorney's fees, denied the motioninsofar as it sought declarations that defendant was not a protected tenant of and not entitled topossession of unit 6B, and granted defendant's cross motion for summary judgment as to his firstcounterclaim and declared him a statutory tenant of unit 6B, unanimously modified, on the law,to delete the reference to the status of defendant's spouse, Elina Cardet, as a statutory tenant, andotherwise affirmed, without costs.
The law of the case doctrine "is inapplicable where, as here, a summary judgment motionfollows a motion to dismiss" (seeRiddick v City of New York, 4 AD3d 242, 245 [2004]). Our holding in relation to theprior motion to dismiss was based on the facts and law presented by the parties in that proceduralposture, and no more. Supreme Court correctly held that 29 RCNY 2-09 (b) (3) (i) governs, asbetween prime tenant and landlord, the determination of "covered" status under the Loft Law (see Matter of 97 Wooster Corp. v NewYork City Loft Bd., 56 AD3d 331, 332 [2008]). We agree that defendant met his primafacie burden of demonstrating that he satisfied the criteria set forth in such rule. In opposition,plaintiff failed to raise a triable issue of fact. Accordingly, the cross motion for summaryjudgment was properly granted on the first counterclaim.
Notwithstanding that defendant is entitled to covered occupant status, the motion's courtgranting of any declaratory relief to nonparty Ms. Cardet, albeit in a footnote, was improper andpremature because defendant, in his answer, did not counterclaim for any relief with respect toCardet. Moreover, pursuant to 29 RCNY 2-08.1 (c), succession rights arise after the protectedtenant has permanently vacated.[*2]
Defendant's cross appeal seeking summary judgment onhis second counterclaim for attorney's fees under Real Property Law § 234 is rejected. RealProperty Law § 234 has no application in this declaratory judgment action, even ifpossession could have been awarded to the plaintiff, as plaintiff does not base its right onviolation of a lease term by tenant (seeJerulee Co. v Sanchez, 43 AD3d 328, 329 [2007] ["it is not the ultimate relief thatdetermines whether or not a dispute arises out of the lease within the meaning of section 234, asthe tenant contends. Rather, it is determined by whether the litigation is based upon a breach ofthe terms of the lease, which was not the case here"], lv denied 9 NY3d 815 [2007];J.D. Realty Assoc. v Shanley, 288 AD2d 27, 28 [2001]). In any event, the lease, whichexpired in 1983, was not included in the record of this appeal. Thus it was never established thatthe lease provided for an award of attorney fees to the plaintiff thereby triggering the applicabilityof Real Property Law § 234.
In light of the foregoing, we need not reach the parties' remaining contentions.Concur—Andrias J.P., Catterson, Moskowitz, Abdus-Salaam and RomÁn, JJ.[Prior Case History: 26 Misc 3d 1204(A), 2009 NY Slip Op 52661(U).]