Goldman v Massie

[*1] Goldman v Massie 2007 NY Slip Op 50924(U) [15 Misc 3d 138(A)] Decided on May 4, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 4, 2007
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKEON, P.J., McCOOE, DAVIS, JJ
570374/06.

Jane H. Goldman, Allan H. Goldman, Amy P. Goldman and Diane G. Kemper as Executors for the Estate of Lillian Goldman and the Lillian Goldman Family, LLC, Petitioner-Landlord-Appellant,

against

John Massie a/k/a John Robert Massie, Respondent-Tenant-Respondent, -and- "John Doe" and "Jane Doe", Respondents-Undertenants.

Landlord appeals from an order of the Civil Court of the City of New York, New York County (Pam B. Jackman-Brown, J.), dated December 2, 2005, which granted tenant's motion for summary judgment dismissing the petition and denied, as moot, landlord's cross motion to strike tenant's second through sixth affirmative defenses and for leave to conduct discovery in a nonprimary residence holdover proceeding.

PER CURIAM:

Order (Pam B. Jackman-Brown, J.), dated December 2, 2005, reversed, with $10 costs, tenant's motion denied, petition reinstated, denial of the cross motion vacated and the cross motion remanded for determination.

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 Manhattan apartment and a Dutchess County residence (see West 15th St. Assocs. v Sassoonian, 156 AD2d 137 [1989]; Kamvan Co. v Rammel, 132 Misc 2d 909 [1986]). Triable issues as to tenant's primary resident status are raised by tenant's acknowledgment that his 2003 New York State resident income tax return listed his county of residence as "Dutchess" and the sworn allegations of landlord's resident lobby attendant as to the sporadic nature of tenant's presence in the building premises. [*2]

Since tenant was granted summary judgment, the court did not reach the merits of landlord's cross motion seeking varied relief. We vacate the denial of the cross motion and remand for the court to consider the cross motion on the merits.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: May 04, 2007