151 E. 19th St., LLC v Silverberg

[*1] 151 E. 19th St., LLC v Silverberg 2007 NY Slip Op 50322(U) [14 Misc 3d 139(A)] Decided on March 1, 2007 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 1, 2007
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKEON, P.J., McCOOE, SCHOENFELD, JJ
570592/06.

151 E. 19th Street, LLC f/k/a Frederick Raymond, Deborah Raymond and Christine Raymond, as as tenants-in-common, Petitioner-Landlord-Appellant,

against

June Silverberg, Respondent-Tenant-Respondent.

Landlord appeals from that portion of an order of the Civil Court of the City of New York, New York County (John S. Lansden, J.), entered October 25, 2005, which denied its cross motion for summary judgment in a summary holdover proceeding.

PER CURIAM:

Order (John S. Lansden, J.), entered October 25, 2005, affirmed, with $10 costs.

This nonprimary residence holdover proceeding is not susceptible to summary dismissal, since there exist material questions of fact as to the nature and extent of tenant's presence at and usage of the subject East 19th Street apartment and a Grand Street apartment, where her (now) deceased uncle and aunt previously resided. The conflict as to whether the subject rent controlled apartment is actually being used as tenant's primary residence should be resolved at trial, and not on summary judgment (see West 15th St. Assoc. v Sassoonian, 156 AD2d 137 [1989]; Kamvan Co. v Rammel, 132 Misc 2d 909 [1986]).

This constitutes the decision and order of the court.
I concurI concur I concur [*2]
Decision Date: March 1, 2007