8 W. 9th St., LLC v Hunter

[*1] 8 W. 9th St., LLC v Hunter 2007 NY Slip Op 50428(U) [14 Misc 3d 145(A)] Decided on March 7, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 7, 2007
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKEON, P.J., McCOOE, KLEIN HEITLER, JJ
570721/06.

8 West 9th Street, LLC, Petitioner-Landlord-Appellant,

against

Sally Hunter a/k/a S. Hunter, Respondent-Tenant-Respondent, "John Doe" and/or "Jane Doe" Respondents.

Landlord appeals from an order of the Civil Court of the City of New York, New York County (Pam B. Jackman-Brown, J.), dated June 7, 2006, which granted tenant's cross motion for summary judgment dismissing the petition in a nonprimary residence holdover proceeding.

PER CURIAM:

Order (Pam B. Jackman-Brown, J.), dated June 7, 2006, reversed, with $10 costs, tenant's cross motion denied, petition reinstated and the matter remanded for further proceeding.

Tenant's motion to dismiss the holdover petition should have been denied since the record does not establish as a matter of law that landlord "intended to relinquish a known right" (Sullivan v Brevard Assocs., 66 NY2d 489, 495 [1985]), when it initially accepted tenant's check covering the July and August 2005 rent after termination of the tenancy and prior to the commencement of the holdover proceeding. Triable issues exist as to landlord's intent (see Goldman v Becraft, 6 Misc 3d 135[A], 2001 NY Slip Op 50152[U][2001]), at least on this record, which shows that landlord rejected the tenant's initial, "window period" tender of the July 2005 rent. In reinstating the petition, we do not pass upon the landlord's application for leave to conduct disclosure, a matter not reached below.

This constitutes the decision and order of the court.
Decision Date: March 7, 2007