2018 NY Slip Op 51958

Citation: 2018 NY Slip Op 51958
Jurisdiction: New York (state)
Source verification: cross_accepted_sealed
Original Source: https://www.nycourts.gov/reporter/3dseries/2018/2018_51958.htm ↗

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At most, they are Dogwood LLC's undertenants. Cf. 304 PAS Owner LLC v Life Extension Realty LLC, 60 Misc 3d
132 (A), *2, 2018 NY Slip Op 51020 (U) ("undertenant, whether licensee, subtenant or
occupant, need not be served with the notice of termination" in holdover proceeding, since they
were not the lessor's immediate tenant).

In any event, the seventh cause of action does not purport to assert a claim on behalf of
Blumenfeld or his sons, and repeatedly asserts allegations, not about what Blumenfeld bargained
for, but what Dogwood LLC bargained for under its proprietary lease, and Dogwood LLC's
inability to use the Apartment as intended, and only seeks relief on Dogwood LLC's behalf.
Proposed amended complaint, ¶¶ 165, 166, 168, 180. Dogwood LLC cannot use the
occupancy [*26]of the Apartment by strangers in an attempt to
benefit from the proprietary lease or, in the case of Max and Lucas, improper occupants, to cure
Dogwood LLC's inability, as an entity, to occupy its residential unit in order to create a breach of
the warranty of habitability claim. Thus, in the amended 2017 complaint, Dogwood LLC fails to
state a breach of warranty of habitability cause of action as against Stable pursuant to Real
Property Law § 235-b and that claim is thus dismissed.[FN13]

Derivative Causes of Action

The eighth through eleventh causes of action assert derivative claims by plaintiffs on Stable's
behalf and are based on the prefatory allegations concerning the cellar units, namely that the use
of some of the cellar level rooms fail to conform to the building's 1987 certificate of occupancy,
which allegedly authorizes the cellar level space to be used solely for storage or as recreation
rooms, but not as bedrooms or as bathrooms with a tub or shower, which is how portions of the