360 W. 55th St., L.P. v De George

[*1] 360 W. 55th St., L.P. v De George 2012 NY Slip Op 51159(U) Decided on June 25, 2012 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 25, 2012
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, J.P., Hunter, Jr., Torres, JJ
570215/11.

360 West 55th Street, L.P., A Limited Partnership, Petitioner-Landlord-Respondent, - -

against

Barbara De George, Respondent-Tenant-Appellant, - and - "John Doe" and "Jim Doe," Respondents.

Tenant and respondent Joseph De George, as limited by their briefs, appeal from that portion of an order of the Civil Court of the City of New York, New York County (David J. Kaplan, J.), entered February 3, 2011, which granted motion for summary judgment on its possessory cause of action in a holdover summary proceeding.

Per Curiam.

Order (David J. Kaplan, J.), entered February 3, 2011, affirmed, with $10 costs.

We agree that respondent Joseph De George, the son of the departed stabilized tenant, failed to raise an issue of fact with respect to his proffered succession defense. The record evidence, including the deposition testimony of both tenant and her son, conclusively established that tenant took up primary residence in Pennsylvania in or about January of 2007, but did not permanently vacate the subject apartment at any time prior to the expiration of her most recent renewal lease on May 31, 2009. On this record, and in the absence of any evidence tending to show that respondent "resided with" the tenant in the subject apartment during the two-year period immediately preceding tenant's permanent vacatur (Rent Stabilization Code [9 NYCRR] § 2523.5[b][1]), respondent's succession claim must fail (see Third Lenox Terrace Assocs. v Edwards, 91 AD3d 532 [2012]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: June 25, 2012