85 Fourth Partners, L.P. v Puckey

[*1] 85 Fourth Partners, L.P. v Puckey 2007 NY Slip Op 51660(U) [16 Misc 3d 136(A)] Decided on August 29, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 29, 2007
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKEON, P.J., McCOOE, SCHOENFELD, JJ
570338/06.

85 Fourth Partners, L.P., Petitioner-Landlord-Appellant,

against

Donald Puckey, Respondent-Tenant, -and- Harold Nolan, Respondent-Undertenant-Respondent.

Petitioner-landlord, as limited by its briefs, appeals from that portion of an order of the Civil Court of the City of New York, New York County (Marc Finkelstein, J.), dated May 26, 2006, which denied its motion for summary judgment on the holdover petition and for dismissal of respondent Nolan's rent overcharge counterclaim.

PER CURIAM:

Order (Marc Finkelstein, J.), dated May 26, 2006, insofar as appealed from, reversed, with $10 costs, petitioner-landlord's motion granted, counterclaim dismissed and summary judgment awarded to landlord on the holdover petition.

The record conclusively shows that respondent Nolan was merely a licensee of the departed stabilized tenant (Puckey), and lacked any independent possessory rights in the subject rent stabilized apartment (see Chusid v Wright, 138 AD2d 29 [1988], appeal dismissed 72 NY2d 948 [1988]). It is undisputed that Puckey, after vacating the premises in or around April 1994, paid all rent and executed all renewal leases solely in his name for more than a decade prior to landlord's commencement of this proceeding in October 2005, thus substantially undermining Nolan's tenancy claim. Nolan's actions in adding his signature to a December 1993 renewal form issued to Puckey and in tendering rent checks for several months immediately following Puckey's 1994 departure were insufficient to require a trial on Nolan's occupancy status, particularly given the prior managing agent's January 19, 1995 correspondence expressly disclaiming that Nolan had any tenancy rights.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: August 29, 2007