Grant Ave. Apts., LLC v Nicholson

[*1] Grant Ave. Apts., LLC v Nicholson 2016 NY Slip Op 50088(U) Decided on January 27, 2016 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 27, 2016
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, J.P., Hunter, Jr., Ling-Cohan, JJ.
570969/15

Grant Avenue Apts., LLC, Petitioner-Landlord-Appellant, -

against

Brenda Nicholson a/k/a Brenda Pressly a/k/a Brenda Williams and Elsie Marable, Respondents-Tenants, Gloria Johnson, Respondent-Undertenant-Respondent, "John Doe" and "Jane Doe," Respondents.

Landlord as limited by its brief, appeals from so much of an order of the Civil Court of the City of New York, Bronx County (Inez Hoyos, J.), dated August 21, 2015, as denied landlord's motion to strike respondent Gloria Johnson's second, third and fourth affirmative defenses, and set the matter down for a traverse hearing, in a holdover summary proceeding.

Per Curiam.

Order (Inez Hoyos, J.), entered August 21, 2015, insofar as appealed from, affirmed, without costs.

Civil Court properly denied petitioner-landlord's CPLR 3211(b) motion to strike respondent Johnson's fourth affirmative defense, which alleged Johnson's 20-year presence in the apartment with the (prior) landlord's permission. The record presents triable issues regarding the nature and extent of Johnson's occupancy, which must be resolved at trial.

Inasmuch as Johnson controverted the claims made in the affidavit of service, a traverse hearing was required.

We have considered petitioner's remaining arguments and find them unpersuasive.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: January 27, 2016