208-210 E. 7th LLC v Martinez

[*1] 208-210 E. 7th LLC v Martinez 2015 NY Slip Op 50880(U) Decided on June 12, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 12, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Shulman, JJ.
570133/15

208-210 East 7th LLC, -Landlord-

against

Edith Martinez, Respondent-Tenant-Respondent, -and- Jose Miranda, Respondent-Undertenant-Respondent.

Landlord, as limited by its briefs, appeals from so

much of an order of the Civil Court of the City of New York, New York County (Michelle D. Schreiber, J), dated November 13, 2014, as granted tenant's cross motion for summary judgment dismissing the petition in a holdover summary proceeding, and directed a hearing to determine the reasonable value of tenant's attorneys' fees.

Per Curiam.

Order (Michelle D. Schreiber, J.), dated November 13, 2014, insofar as appealed from, reversed, with $10 costs, tenant's cross motion denied, and the petition reinstated.

The holdover proceeding, alleging that tenant breached a substantial obligation of the tenancy and committed a nuisance in violation of Rent Stabilization Code (9 NYCRR) § 2524.3(b) by making certain illegal alterations in her apartment, is not ripe for summary dismissal. The evidentiary proof submitted by tenant failed to establish the absence of material issues of fact as to whether she timely effectuated a cure of the complained-of-alterations, described in the notice to cure as the construction of an "illegal loft in the bedroom" or, as described in an HPD violation report, a "wooden platform . . . creating two levels." In this regard, the moving affidavit of tenant's husband conspicuously failed to indicate the actual date he removed the offending condition or the date he informed landlord that the condition had been cured. Nor was any evidentiary proof submitted demonstrating that landlord was aware of tenant's cure prior to the commencement of the underlying holdover proceeding (see Cambridge Dev., LLC v Staysna, 68 AD3d 614 [2009]; Ariel Assoc. v Brown, 271 AD2d 369 [2000], lv dismissed 95 NY2d 8444 [2000]). Without any such showing, tenant's purported timely cure is not firmly established in the record.

Given tenant's failure to meet her initial burden of demonstrating entitlement to judgment as a matter of law, summary dismissal of the petition should have been denied irrespective of the sufficiency of landlord's opposition (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). In such posture, tenant's entitlement to attorneys' fees as the prevailing party in this litigation was premature.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur

Decision Date: June 12, 2015