Rubenstein v. 140 West End Avenue Associates , 148 A.D.2d 386 ( 1989 )

Order, Surrogate’s Court, New York County (Marie Lambert, S.), entered on or about August 22, 1988, which denied respondents-appellants’ motion to dismiss the petition and granted petitioners-respondents’ cross motion for summary judgment, unanimously reversed, on the law, respondents-appellants’ motion to dismiss the petition granted and the petitioners-respondents’ cross motion for summary judgment denied, without costs.

Petitioners are the executors of the estate of Nathan Silver-stein (decedent). At the time of his death the decedent was a tenant in apartment 11-J at 140 West End Avenue in New York County pursuant to a lease dated March 7, 1977 and subsequently extended to March 31, 1987 pursuant to the rent stabilization laws. Subsequent to decedent’s death, a plan to convert the building to cooperative ownership was approved for filing by the Attorney-General.

Petitioners allege that because the cooperative conversion plan was distributed prior to the death of the decedent and even though it had not been approved for filing by the Attorney-General, they are entitled to purchase the shares allocated to the apartment in question. Recently, this court decided Matter of Rubinstein v 160 W. End Owners Corp. (145 AD2d 390), and, on facts similar to those here, rejected the petitioner’s argument that he was entitled to purchase the shares of a deceased tenant. This court held "the exercise of insider rights mandates the addition of a factor other than merely the existence of a landlord-tenant relationship; there must be actual use and possession of the premises at the time that the plan is accepted for filing.” (Supra, at 392.)

The Rubinstein case (supra) is controlling here and mandates reversal. Concur — Murphy, P. J., Asch, Rosenberger, Smith and Rubin, JJ.