188-90 Eighth Ave. HDFC v Guzman

[*1] 188-90 Eighth Ave. HDFC v Guzman 2010 NY Slip Op 51658(U) [29 Misc 3d 126(A)] Decided on September 28, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 28, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Shulman, Hunter, Jr., JJ
570578/09.

188-90 Eighth Avenue HDFC, Petitioner-Landlord-Appellant,

against

Maria Guzman, Respondent-Tenant-Respondent, -and- Georgina Lugo, Respondent-Undertenant-Respondent, -and- "John Doe" and "Jane Doe", Respondents-Undertenants.

Petitioner-landlord appeals from an order of the Civil Court of the City of New York, New York County (Joseph E. Capella, J.; op 23 Misc 3d 1034 [2009]), dated February 24, 2009, which, inter alia, granted respondents' cross motion for summary judgment dismissing the petition in a holdover summary proceeding.

Per Curiam.

Order (Joseph E. Capella, J.), dated February 24, 2009, modified to deny respondents' motion for summary judgment and remand the matter for further proceedings, including disposition of petitioner's motion to strike the affirmative defenses set forth in respondents' answer; as modified, order affirmed, without costs.

This holdover summary proceeding is not susceptible to summary disposition, since the record now before us presents mixed questions of law and fact as to the nature of respondent Guzman's occupancy in the HDFC apartment premises. Among the issues requiring resolution at trial are whether petitioner afforded Guzman proper notice of her right to elect not to purchase her apartment (see John Adams Partners LTD-WBR v Albert, 113 Misc 2d 566 [1982]); whether Guzman qualified for eviction protection as an "eligible disabled person" after the cooperative conversion process (see General Business Law §§ 352-eeee[1][g]); whether Guzman's right to purchase the apartment premises was improperly limited by the terms of the parties' August 1988 stipulation settling an earlier nonpayment proceeding, and whether, in any event, she [*2]substantially complied with the stipulation so as to entitle her to eviction protection as an equitable owner of the apartment (see generally Societe Anonyme D'Exploitation, 112 AD2d 837, 838-839 [1985]).

Since the nature of Guzman's occupancy status cannot be finally determined on this record, any issue as to the adequacy of the termination notice is reserved for trial. We remand the matter for disposition of petitioner's cross motion to strike respondents' affirmative defenses — denied as moot below — and further proceedings on the petition.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: September 28, 2010