Insofar as pertinent, paragraph 14 of the proprietary lease provides that the apartment may not be used for any purpose "other than as a private dwelling for the Lessee and Lessee's wife, their children, grandchildren, parents, grandparents, brothers and sisters and domestic employees." The motion court correctly construed this as permitting occupancy by the listed persons other than the lessee only if the lessee maintains a concurrent occupancy. This meaning is manifested by a grammatical structure that does not differentiate between the lessee's family and domestic employees. Thus, to hold that paragraph 14 permits defendant's mother-in-law to live in the apartment without defendant also living there at the same time would be to permit defendant's domestic employee to live in the apartment without defendant also living there at the same time — a patently unintended if not absurd result (see Weisz v. 233 E. 69thOwners Corp., NYLJ, Apr 19, 1995, at 25 [Sup Ct, N.Y. County, Lebedeff, J.], citing inter alia Real Property Law § 235-f [tenant or tenant's spouse must be in residence in order for the apartment to be occupied by the tenant's family or additional occupant]). We find it unnecessary to decide whether paragraph 14 is enforceable to the extent it conditions a spouse's occupancy on the lessee's concurrent occupancy, and is therefore apparently more restrictive than Real Property Law § 235-f(3).
The motion court also correctly held that under the broad language of its proprietary lease and by-laws, plaintiff was entitled to impose and collect sublet fees without approval of a majority of the shareholders (Jones v. Southgate Owners Corp., 289 A.D.2d 73).
However, the motion court erred in concluding that the sole, non-permitted occupancy of the apartment by defendant's mother-in-law constitutes an illegal sublet. While defendant admits that the apartment is occupied solely by his mother-in-law, there is no evidence that such occupancy is by virtue of a right that cannot be revoked for a fixed period of time. To the contrary, on the evidence presented, it appears that the mother-in-law's occupancy is at defendant's will, and that she is therefore his licensee, not tenant (see American Jewish Theatre v. Roundabout Theatre Co., 203 A.D.2d 155, 156). Nor does the proprietary lease or plaintiff's by-laws anywhere define a non-permitted occupancy as a sublet. Accordingly, plaintiff is not entitled to summary judgment on its cause of action for sublet fees, and we modify accordingly.
Although Real Property Law § 234 affords the tenant a reciprocal right to attorneys' fees where the lease contains a provision entitling the landlord thereto, to support such an award, the judgment must be substantially favorable to the tenant (Walentas v. Johnes, 257 A.D.2d 352, 354, lv dismissed 93 N.Y.2d 958). Even if defendant ultimately prevails on the issue of whether he must pay sublet fees, any judgment that does not recognize his mother-in-law as sole occupant of the apartment cannot be said to be substantially in his favor.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.