Co-ops – Proprietary Lease Did Not, as a Matter of Law, Require That Shareholder Reside Contemporaneously With Member of Immediate Family—Second Department Held That the Lease Provision Was Ambiguous and Did Not Expressly Require the Consent for the Subject Type of Occupancy Arrangement—First Department Reviewing the Same Provision, Found a Contemporaneous Occupancy Requirement

A cooperative corporation (co-op) commenced a holdover proceeding to recover possession of an apartment, maintenance arrears, legal fees, costs and disbursements. The salient issue was whether the respondent shareholder violated the subject proprietary lease by “unlawfully subletting the apartment to her daughter.” The co-op alleged that the shareholder did not reside in the apartment and that the lease “requires her to occupy the premises contemporaneously with her daughter.”

The respondents contended that “the plain language of the…lease allows for immediate family members to reside with a named lessee.” The respondents had moved to dismiss the petition pursuant to CPLR 3211(a)(7), upon documentary evidence, or in the alternative, for dismissal pursuant to CPLR 3211(a)(7) and RPAPL §741, upon the grounds that the petition fails to state a cause of action.