
    Charlotte Realty Co., Appellant, v Martin Lubarsky, Respondent.
    Supreme Court, Appellate Term, Second Department,
    September 11, 1986
    APPEARANCES OF COUNSEL
    
      Leon A. Katz and Edward Minton for appellant. Keilson & Keilson (Joseph Keilson of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

Final judgment affirmed, without costs.

We agree with landlord’s contention that a tenant who remains in possession by virtue of the compulsion of the rent laws is a statutory tenant rather than a month-to-month tenant and the notice required by Real Property Law § 232-a would not be required to terminate such a tenancy (Whitmarsh v Farnell, 298 NY 336; Park Summit Realty Corp. v Frank, 107 Misc 2d 318, affd 84 AD2d 700, affd 56 NY2d 1025; Lewittes & Sons v Spielmann, 190 Misc 35). However, housing accommodations not occupied by the tenant as his primary residence are excluded from coverage of the New York City Rent and Rehabilitation Law (Administrative Code of City of New York § Y51-3.0 [e] [2] [i] [10]; see also, Warhit Real Estate v Krauss, 131 Misc 2d 429). Tenant, therefore, would not be a statutory tenant but a month-to-month tenant, and it was required that he be served with the 30-day notice terminating the tenancy, as well as the notice of intent to institute a summary proceeding based on nonprimary residence grounds, as provided for in the Administrative Code.

Pizzuto, J.

(dissenting). Pizzuto, J., dissents in the following memorandum and votes to reverse the judgment dismissing the petition and to direct a final judgment of possession in favor of landlord.

The section of the Administrative Code relied on by the majority for concluding that there was no statutory tenancy (Administrative Code of City of New York § Y51-3.0 [e] [2] [i] [10]), excludes from coverage of the New York City Rent and Rehabilitation Law those housing accommodations "not occupied by the tenant * * * as his primary residence, as determined by a court of competent jurisdiction” (emphasis supplied). (See comments, Parkview Assoc. v Lalor, 124 Misc 2d 998.) It specifically prescribes the manner in which a "nonprimary resident” tenancy may be terminated by summary proceeding. Thus, in light of its language, the tenancy remained subject to the protection of rent control until such time as a court of competent jurisdiction determined the "nonprimary residence” status. Therefore, the only notice required to be served is the 30-day notice of the intention to commence a summary proceeding on nonprimary residence grounds. Without any basis therefor, the majority has chosen to categorize the loss of statutory protection as the inception of a month-to-month tenancy requiring the service of a section 232-a notice. It is my view that the specific requirement of the Administrative Code supersedes the general section 232-a requirements, if applicable (see, McKinney’s Cons Laws of NY, Book 1, Statutes § 397; 56 NY Jur, Statutes, § 86). In any event, the law should not be so construed as to promote meaningless activity and discourage the expeditious disposition of litigation.

Inasmuch as the record establishes that the required notice was served upon tenant and that tenant is not occupying the accommodations as his primary residence, I would reverse the judgment in favor of tenant and direct the entry of a final judgment of possession in favor of landlord.

Kassoff, J. P., and Williams, J., concur; Pizzuto, J., dissents in a separate memorandum.  