Amush Enters., LLC v Wallace

[*1] Amush Enters., LLC v Wallace 2015 NY Slip Op 50851(U) Decided on June 4, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 4, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, J.P., Hunter, Jr., Ling-Cohan, JJ.
570741/14

Amush Enterprises, LLC, Petitioner-Respondent, -

against

Darren Wallace and Darren Wallace Design Inc., Respondents-Appellants.

Respondents, as limited by their brief, appeal from those portions of order of the Civil Court of the City of New York, New York County (Frank P. Nervo, J.), dated February 22, 2013, which granted petitioner's motion to dismiss respondents' affirmative defenses and for summary judgment of possession in a holdover summary proceeding.

Per Curiam.

Order (Frank P. Nervo, J.), dated February 22, 2013, modified by denying those branches of petitioner's motion which were to dismiss respondents' defenses alleging that the premises were rented for residential purposes and that petitioner was not a proper party to maintain this proceeding, and for summary judgment of possession; as modified, order affirmed, without costs.

This "commercial" holdover proceeding is not susceptible to summary disposition. Despite the commercial nature of the written lease agreement, the limited record so-far developed raises triable issues as to whether petitioner knew or acquiesced in respondents' residential use of the demised premises (see U.B.O. Realty Corp. v Mollica, 257 AD2d 460 [1999]). In this regard, the affidavit of the first named respondent alleges that petitioner's agent knew that the premises were leased for residential purposes, and that the agent was in the apartment weekly to observe the progress of respondents' renovations, which included the installation of a bathroom, full kitchen and hardwood floors. In the event premises are used for residential purposes with the petitioner's knowledge or acquiescence, a holdover proceeding must be brought in the Housing Part, and a proceeding brought in the Commercial Part must be dismissed (see 22 NYCRR 208.42[A]; 379 E. 10th St., LLC v Miller, 23 Misc 3d 137[A], 2009 NY Slip Op 50864[U] [App Term, 1st Dept 2009]).

The parties' submissions also raise a factual issue as to whether petitioner Amush Enterprises, LLC, was the proper party to maintain this proceeding, since the lease submitted by petitioner identifies the owner as "Shell Management, Amush Enterprises, LLC, TEOJG." Respondents' remaining defenses were properly dismissed. With respect to the defense of lack of personal jurisdiction, respondents' conclusory allegations were insufficient to rebut the presumption of proper service created by the affidavit of service (see Matter of de Sanchez, 57 AD3d 452, 454 [2008]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: June 04, 2015