165 Ludlow Owner LLC v Washburn

[*1] 165 Ludlow Owner LLC v Washburn 2014 NY Slip Op 51677(U) Decided on December 1, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 1, 2014
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Shulman, Hunter, Jr., JJ.
570704/14

165 Ludlow Owner LLC., Petitioner-Landlord-Appellant, -

against

Robert Washburn, Respondent-Tenant-Respondent.

Landlord appeals from an order of the Civil Court of the City of New York, New York County (Sheldon J. Halprin, J.), dated October 18, 2013, which granted tenant's preanswer motion to dismiss the petition in a holdover summary proceeding.

Per Curiam.

Order (Sheldon J. Halprin, J.), dated October 18, 2013, reversed, with $10 costs, tenant's motion denied and petition reinstated.

This holdover proceeding is not ripe for summary dismissal on the preanswer record so far developed. The intent of the parties as to the contemplated duration of the preferential rent cannot be unequivocally ascertained from the four corners of the lease rider here in dispute (see Matter of Pastreich v New York State Div. of Hous. & Community Renewal, 50 AD3d 384, 387 [2008]), and thus tenant's dismissal motion based on documentary evidence should have been denied (see Witiuk v Witiuk, 216 AD2d 779, 780-781 [1995]). In this regard, the rider did not "unequivocally and explicitly provide[] for a rent concession for the duration of the tenancy" (Colonnade Management, LLC v Warner, 11 Misc 3d 52 [2006]) and is reasonably susceptible of more than one interpretation as to whether the term "renewal rent," as used in the rider, was the amount to be paid by tenant upon renewal of the lease, or instead the amount intended to be used by landlord in calculating future rents in vacancy leases. Nor at this juncture can the parties' intent be gleaned from their course of conduct (see Waverly Corp. v City of New York, 48 AD3d 261, 265 [2008]), particularly given the ambiguities created by the handwritten notations appearing on the renewal lease forms contained in the record but not directly addressed by the parties.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: December 01, 2014