Opinion
April 28, 1999
Appeal from the Civil Court, New York County, (Arthur Birnbaum, J.).
Treanor, Harvey, Sullivan, Trowbridge Mullen (Robert W. Mullen of counsel), for appellant-respondent.
Borah, Goldstein, Altschuler Schwartz, P. C. (Jeffrey R. Metz of counsel), for respondent-appellant.
PRESENT: HON. STANLEY PARNESS, P.J., HON. WILLIAM P. McCOOE, HON. WILLIAM J. DAVIS, Justices.
Final judgment entered January 15, 1998 and order dated June 16, 1998 (Arthur Birnbaum, J.) affirmed, with $25 costs.
Tenant, a self-employed musician, is the rent stabilized occupant of a six-room apartment in the Ansonia building situated at 2109 Broadway, Manhattan. At issue in this holdover proceeding is tenant's alleged breach of a rider to the governing lease which provides: "The Tenant shall have the privilege of using the apartment as a music studio between the hours of 9 AM and 9 PM". The record shows that tenant, through his corporation, regularly let out four of the six rooms (each equipped with a grand piano) to teachers for lessons or to individuals for practice time at the rate of $9 per hour, six days a week. Tenant himself also gave music instruction in the premises. As found below, approximately ten to twenty persons a day visited the studios.
We agree with Civil Court that the scope of tenant's extensive professional use of the apartment constitutes a significant violation of the tenancy (Park West Village v. Lewis, 62 N.Y.2d 431). The use covenant of the lease, reasonably construed in the context of a regulated tenancy in a multiple dwelling, would permit tenant to personally engage in music instruction or rehearsal during the hours allowed. However, the "privilege" afforded to tenant should not be read as authorizing the creation of commercial studios for hire by licensing individual rooms to third parties for a fee. The rent stabilization laws protect premises which are utilized primarily for residential purposes, not professional enterprises (Gallin v. Mendelson, 151 A.D.2d 228). It is clear that the nature and extent of tenant's use does not qualify as an accessory "Home occupation" under New York City Zoning Resolution § 12-10.
On landlord's cross-appeal, we also affirm the trial court's stay of the warrant provided tenant cures the conduct complained of RPAPL § 753 Acts. (4) requires a cure period in breach of lease proceedings. In Post v. 120 East End Avenue Corp. ( 62 N.Y.2d 19), a case where a psychiatrist improperly used his cooperative apartment for professional purposes, the Court of Appeals remitted the proceeding for application of the statute and noted that it should be "liberally construed" (id, p. 24).