36 Attorney St. Tenants Assn. v Casalinuoro

[*1] 36 Attorney St. Tenants Assn. v Casalinuoro 2005 NY Slip Op 50317(U) Decided on March 10, 2005 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 10, 2005
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT:
HON. WILLIAM P. McCOOE, J.P.
HON. WILLIAM J. DAVIS
HON. MARTIN SCHOENFELD, Justices.
570152/04

36 Attorney Street Tenants Association, Petitioner-Appellant, 04-139

against

Lisa Casalinuoro, Respondent-Respondent, -and- "JOHN AND/OR JANE DOE", Respondents-Occupants- Respondents.

Petitioner appeals from an order of the Civil Court, New York County, dated November 24, 2003 (Jean T. Schneider, J.) which, inter alia, denied its motion for summary judgment in a holdover summary proceeding.

PER CURIAM:

Order dated November 24, 2004 (Jean T. Schneider, J.) modified to grant petitioner's motion for summary judgment on the holdover petition, and as modified, affirmed, without costs. [*2]

Upon the death of the record tenant, the parties entered into a written "license" agreement dated June 4, 2002, authorizing respondent Lisa Casalinuoro (the deceased tenant's daughter) to occupy the subject low-income cooperative apartment unit on a "probationary basis" through June 14, 2003. The terms of the license agreement expressly and unambiguously conditioned respondent's right to "become the month to month tenant of the Premises" upon her compliance with several stated conditions, including timely payment of use and occupancy, a condition that she undisputedly did not satisfy. In opposition to petitioner's prima facie showing of entitlement to summary judgment on the holdover petition, respondent's submission, relying principally upon the representations of counsel who lacked personal knowledge of the facts, failed to raise a triable issue as to whether there was an oral extension of the probationary term of the license agreement or the creation of a landlord-tenant relationship between the parties (see generally Zuckerman v City of New York, 49 NY2d 557 [1980]). Counsel's assertion that respondent "is prepared to present testimony" on her lone surviving affirmative defense of waiver and/or estoppel, unaccompanied by any explanation for the absence of a personal affidavit from respondent addressing the issue, was clearly insufficient to withstand summary judgment. Nor can there be any serious dispute that the parties' written agreement — affording respondent the right to occupy the cooperative apartment premises on a probationary basis and conditioning respondent's tenancy status upon her compliance with specified requirements — constituted a license and not a lease (see Miller v City of New York, 15 NY2d 34, 38 [1964]).

This constitutes the decision and order of the court.
I concur I concurI concur
Decision Date: March 10, 2005