Clinton Realty Assoc., LLC v De Los Angeles

[*1] Clinton Realty Assoc., LLC v De Los Angeles 2010 NY Slip Op 52178(U) [29 Misc 3d 142(A)] Decided on December 16, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 16, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Schoenfeld, Hunter, Jr., JJ
570850/09.

Clinton Realty Associates, LLC, Petitioner-Landlord-Appellant,

against

Melania De Los Angeles, Respondent-Tenant, -and- Juan De Los Angeles, Respondent-Undertenant-Respondent, -and- Emilio De Los Angeles, Ingris De Los Angeles, "John Doe" and/or "Jane Doe." Respondents-Undertenants.

Petitioner appeals from an order of the Civil Court of the City of New York, New York County (Thomas M. Fitzpatrick, J.), dated October 1, 2009, which denied its motion for summary judgment in a holdover summary proceeding.

Per Curiam.

Order (Thomas M. Fitzpatrick, J.), dated October 1, 2009, reversed, with $10 costs, petitioner's motion for summary judgment granted and final judgment directed in favor of petitioner awarding it possession of the subject apartment. Issuance of the warrant of eviction shall be stayed for 30 days from the service of a copy of this order with notice of entry.

In opposition to petitioner's prima facie showing of entitlement to summary judgment on its cause of action seeking possession of the subject rent stabilized apartment, respondent Juan De Los Angeles failed to raise a triable issue with respect to his succession claim. While respondent contends that the tenant of record his wife, Melania permanently vacated the apartment in December 2001, that unsubstantiated assertion is conclusively belied by the documentary evidence showing, among other things, that Melania executed a two-year renewal [*2]lease for the apartment in May 2003 and paid rent through September 2004. Since Melania did not permanently vacate the apartment any time prior to the 2005 expiration of the last renewal lease that she executed (see Third Lenox Terrace Assoc. v Edwards, 23 Misc 3d 126[A], 2009 NY Slip Op 50525[U] [2009]; 72A Realty Assoc. v Kutno, 15 Misc 3d 100 [2007]; East 96th St. Co., LLC v Santos, 13 Misc 3d 133[A], 2006 NY Slip Op 51980[U] [2006]) and respondent and tenant undisputedly did not reside together in the apartment during the two-year period immediately preceding Melania's permanent vacatur (see Rent Stabilization Code [9 NYCRR] § 2523.5[b][1]), respondent's succession claim must fail.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: December 16, 2010