
    Nona Aguilar, Respondent, v Keith Rabin, Doing Business as Arriba Imports, Appellant.
    Supreme Court, Appellate Term, First Department,
    May 15, 1985
    APPEARANCES OF COUNSEL
    
      Javits, Hinckley, Rabin & Engler (<Jack Rabin of counsel), for appellant. Payne, Wood, & Littlejohn (Charles G. Mills of counsel), for respondent.
   OPINION OF THE COURT

Per Curiam.

Final judgment entered April 23, 1984 affirmed, with $25 costs.

We agree that the respondent, a subtenant residing in subdivided loft space, is not, upon the facts presented, a protected person under the Loft Law (Multiple Dwelling Law, art 7-C, § 280 et seq.). The Loft Board rules upon which respondent relies, and which govern situations where the prime lessee of loft space seeks to recover a residential unit located therein, occupied by another {see, Rules and Regulations Relating to Subletting, Subdivision and Assignment § [C] [5] [c]), may not be invoked to continue a loft occupant’s subtenancy where, pursuant to the relevant zoning resolution and permissible “minor modifications” to that resolution, the square footage of the total floor area allows for only one residential unit. We further agree that as between petitioner prime tenant and respondent subtenant, petitioner has the superior right to possession, particularly since only petitioner took any steps to legalize the space by filing applications with the appropriate city agencies.

Hughes, J. P., Riccobono and Parness, JJ., concur.  