Brown Simon & Furtsch (88th) LLC v Jacobs

[*1] Brown Simon & Furtsch (88th) LLC v Jacobs 2005 NYSlipOp 50767(U) Decided on May 25, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 25, 2005
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT:
HON. LUCINDO SUAREZ, P.J.
HON. WILLIAM P. McCOOE
HON. PHYLLIS GANGEL-JACOB, Justices.
570036/04

Brown Simon & Furtsch (88th) LLC, Petitioner-Landlord-Respondent- Cross-Appellant, 04-227/228

against

David M. Jacobs, Respondent-Tenant, -and- Steven Jaffe and/or Susan Jaffe, Respondents-Appellants-Respondents.

Respondents Steven Jaffe and Susan Jaffe appeal, and landlord cross-appeals, from an order of the Civil Court, New York County, dated November 21, 2003 (Kevin C. McClanahan, J.) which denied their respective cross motions for summary judgment in a holdover summary proceeding.

PER CURIAM:

Order dated November 21, 2003 (Kevin C. McClanahan, J.) affirmed, without costs.

Civil Court properly denied the parties' respective cross motions for summary [*2]judgment in this illegal sublet proceeding, since there are issues of fact concerning the landlord's actual or constructive knowledge of tenant's subleasing arrangement and the potential existence of an illusory prime tenancy (see Primrose Mgt. v Donohoe, 253 AD2d 404 [1998]; Vesky v Antunez, 191 Misc 2d 246 [2002]). The conflicting evidence presents questions of credibility that must await trial (see Glick & Dolleck, Inc. v Tri-Pac Export Corp., 22 NY2d 439 [1968]).

This constitutes the decision and order of the court.
Decision Date: May 25, 2005