David Ellis Real Estate, L.P. v Gillen

[*1] David Ellis Real Estate, L.P. v Gillen 2015 NY Slip Op 51587(U) Decided on November 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 4, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Ling-Cohan, JJ.
570297/15

David Ellis Real Estate, L.P., Petitioner-Respondent,

against

Oto Gillen, Respondent-Appellant, - and - "John Doe" and "Jane Doe," Respondents.

Respondent Oto Gillen appeals from an order of the Civil Court of the City of New York, New York County (David J. Kaplan, J.), dated February 4, 2015, which denied his cross motion for summary judgment dismissing the petition and granted petitioner's motion to strike respondent's affirmative defenses and for summary judgment of possession in a holdover summary proceeding.

Per curiam.

Order (David J. Kaplan, J.), dated February 4, 2015, affirmed, with $10 costs, for the reasons stated by David J. Kaplan, J. at Civil Court.

In affirming the grant of summary judgment of possession to petitioner, we emphasize the undisputed record proof establishing that respondent Gillen and his mother vacated the subject interim multiple dwelling loft unit in 1990, when respondent was six years of age; lived together elsewhere for the next fourteen years; and then respondent returned to the premises in 2004, without his mother, subletting a portion of the loft from one Hayashi, the remaining loft tenant. On these facts, respondent's succession claim, premised upon his primary residence with his mother for the two years prior to her 1990 vacatur (see 29 RCNY § 2-08.1) was correctly rejected, since any right of succession respondent had from his mother was abandoned when both vacated the premises in 1990 and lived together elsewhere for more than a decade (see Hughes v Lenox Hill Hosp., 226 AD2d 4, 15-17 [1996], lv denied 90 NY2d 829 [1997]). As Civil Court aptly noted, "[i]t would be unfathomable to interpret the law in the manner posited by respondent that would allow him to assert his claim to the apartment over 20 years after he and the putative tenant simultaneously vacated."

For the same reasons, respondent's alternate claim - that he was an occupant qualified for possession because he was a residential occupant on July 27, 1987 (see 29 RCNY § 2-09[b][2]) - was also properly rejected.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur concur

Decision Date: November 04, 2015