Roxborough Apartments Corp. v. Becker 187 Misc. 2d 604, 723 N.Y.S.2d 817

OPINION OF THE COURT

Per Curiam.

Order dated September 3, 1999 reversed, with $10 costs, and *605tenant’s motion to dismiss the holdover petition is denied.

Civil Court erred in dismissing the holdover petition for failure to state a cause of action. The proceeding is premised upon tenant’s breach of the following lease provision:

“You shall use the apartment for living purposes only. The apartment may be occupied by the tenant or tenants named above and by the immediate family of the tenant or tenants and by occupants as defined in and only in accordance with Real Property Law §235-f.”

Tenant admits that three roommates reside within the premises, a four-bedroom apartment. However, the court found no cognizable lease violation since the lease does not contain any express occupancy limitation and the statute, Real Property Law § 235-f, is permissive and does not restrict existing rights of tenants and occupants (citing Capital Holding Co. v Stavrolakes, 242 AD2d 240, affd 92 NY2d 1009).

Unlike Capital Holding (supra), this possessory proceeding is premised upon a breach of the parties’ own lease, not the statutory provisions of section 235-f. Indeed, Capital Holding states that its ruling “will not restrict landlords from setting reasonable occupancy limitations in leases, or prevent them from enforcing such lease provisions, so long as they do not violate the minimum protections afforded tenants and occupants under section 235-f’ (242 AD2d 240, 244). While landlord has no direct statutory cause of action to enforce occupancy limitations in the absence of a lease, contracting parties are not precluded from referencing section 235-f in their lease or setting “reasonable” limitations “in accordance with” its minimum protections as described in subdivisions (3) and (4). To hold otherwise would effectively render this lease provision meaningless, in derogation of the principle that “[a] contract should not be interpreted in such a way as would leave one of its provisions substantially without force or effect” (Joseph v Creek & Pines, 217 AD2d 534, 535). Accordingly, we deny tenant’s preanswer dismissal motion and reinstate the holdover petition.

Tenant’s claim of waiver raises factual issues which cannot be resolved on the motion papers submitted below.

Parness, P. J.

(dissenting). I would affirm the order of dismissal because tenant’s alleged violation of the lease provision at issue does not provide any basis for a possessory proceeding. *606Section 235-f of the Real Property Law does not create “an affirmative right of action for landlords to enforce occupancy limitations” (Capital Holding Co. v Stavrolakes, 242 AD2d 240, 243, affd 92 NY2d 1009). Therefore, merely stating in the lease that the premises may be occupied “only in accordance with Real Property Law §235-f’ adds nothing since the statute is permissive, not restrictive, and is targeted against landlords who would otherwise impose undue occupancy limitations (Capital Holding Co. v Stavrolakes, supra, at 243). While Capital Holding allows for the setting of reasonable occupancy restrictions in leases, this lease did not clearly and unambiguously set forth any such restriction, “reasonable” or otherwise. Moreover, there is no suggestion that three roommates would be unreasonable in this four-bedroom apartment.

McCooe and Gangel-Jacob, JJ., concur; Parness, P. J., dissents in a separate memorandum.