Mauro v Choi

[*1] Mauro v Choi 2007 NY Slip Op 52425(U) [18 Misc 3d 127(A)] Decided on December 21, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 21, 2007
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Davis, Heitler, JJ
570638/06.

John Mauro, Petitioner-Landlord-Appellant,

against

Anthonia Choi and Gena Sabin, Respondents-Tenants-Respondents.

Landlord appeals from an order of the Civil Court of the City of New York, New York County (Gerald Lebovits, J.), dated September 15, 2006, which denied his motion to renew his opposition to tenants' previously granted motion for summary judgment dismissing the nonpayment petition and awarding tenants a recovery on their counterclaim for rent overcharges.

PER CURIAM:

Order (Gerald Lebovits, J.), dated September l5, 2006, affirmed, with $10 costs.

Landlord's renewal motion, predicated on a legal theory not advanced in opposition to tenant's original motion for summary judgment, was properly denied (see Foley v Roche, 68 AD2d 558, 568 [1979]). Further, it was not an abuse of discretion to deny renewal based upon the landlord's speculative assertions concerning the tenants' use of the apartment during a period subsequent to that covered by the rent overcharge award in tenant's favor.

This Constitutes the Decision and Order of the Court.
Decision Date: December 21, 2007