Barrios v. Klein , 133 A.D.2d 574 ( 1987 )

Order and judgment (one paper) (Walter M. Schackman, J.), entered March 4, 1987 in Supreme Court, New York County, which, inter alia, denied defendants’ motion to strike the complaint and dismiss the action pursuant to CPLR 3126, granted plaintiffs’ cross motion for summary judgment awarding them possession of the subject residential loft premises, and dismissed all of plaintiffs’ remaining claims, unanimously modified, on the law, only to the extent of reinstating plaintiffs’ claims for use and occupancy and attorney’s fees and remanding the matter for determination of those issues and, as so modified, the order and judgment (one paper) is otherwise affirmed, without costs or disbursements.

Plaintiffs’ more than five-year occupation of the premises as prime lessees, the limited duration of the sublease and the intended temporary nature of their move to Chile clearly establish that, during the period from September 15, 1981, the date of the original sublease, to February 25, 1983, when plaintiffs purchased the premises pursuant to a cooperative conversion plan, the subject premises were plaintiffs’ primary residence, and that plaintiffs’ tenancy was not illusory (see, Matter of Avon Furniture Leasing v Popolizio, 116 AD2d 280, 284, lv denied 68 NY2d 610).

The second sublease having expired by its terms on March 14, 1985, plaintiffs are entitled to use and occupancy for the period of defendants’ holdover tenancy, and the parties’ stipulation as to the amount of such use and occupancy was without prejudice to any claims of the parties. Thus, plaintiffs’ claim for use and occupancy should be reinstated and remanded for determination. Likewise, pursuant to the terms of plaintiffs’ proprietary lease which were incorporated in the second sublease, plaintiffs are entitled to attorney’s fees, and a remand is necessary to determine the reasonable amount of such fees. Concur—Murphy, P. J., Kupferman, Sandler, Sullivan and Kassal, JJ.