823 E. 147th St. Hous. Dev. Fund Corp. v Nieves

[*1] 823 E. 147th St. Hous. Dev. Fund Corp. v Nieves 2014 NY Slip Op 51881(U) Decided on December 31, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 31, 2014
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ.
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823 East 147th Street Housing Development Fund Corporation, 570591/14 Petitioner-Landlord-Appellant,

against

Carmen Nieves, Respondent-Tenant-Respondent, - and - Victorino Reyes, Alejandro Armenta, previously served as "John Doe," "John Doe" and "Jane Doe," Respondents-Undertenants.

Landlord appeals from those portions of an order of the Civil Court of the City of New York, Bronx County (Marian C. Doherty, J.), dated June 20, 2014, which denied, in part, its cross motion for summary judgment in a holdover summary proceeding, and granted tenant's motion to file a late answer.

Per curiam.

Order (Marian C. Doherty, J.), dated June 20, 2014, reversed, without costs, tenant's motion denied, landlord's cross motion for summary judgment of possession granted and matter remanded for a determination of landlord's claim for attorneys' fees. Issuance of the warrant of eviction shall be stayed from 30 days from service of a copy of this order with notice of entry.

The HDFC landlord's cross motion for summary judgment of possession should have been granted, based upon its persuasive and unrebutted showing that tenant breached the provisions of the governing proprietary lease agreement prohibiting, inter alia, subletting, assigning and making alterations to the apartment premises. Indeed, the motion court acknowledged that "[t]he [landlord] has proven its prima facie case."

In opposition, tenant's submission, consisting solely of an affirmation of counsel who lacked personal knowledge of the facts, failed to raise a triable issue (see Zuckerman v City of New York, 49 NY2d 557, 563 [1980]). Furthermore, even assuming in tenant's favor that her belated motion to amend her answer was properly granted, the motion court correctly noted that "[t]he [tenant], in her amended answer, has raised no issues of fact with respect to the claims made by the [landlord] in its petition."

[*2]THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: December 31, 2014