178 E. 70th St. LLC v Woodward

[*1] 178 E. 70th St. LLC v Woodward 2016 NY Slip Op 50162(U) Decided on February 17, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 17, 2016
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Shulman, JJ.
571067/15

178 East 70th Street LLC, Petitioner-Landlord-Appellant, -

against

Carol Woodward, Respondent-Tenant, - and - Zachary Levy, Respondent-Undertenant-Respondent.

Landlord, as limited by its brief, appeals from that portion of an order of the Civil Court of the City of New York, New York County (Anne Katz, J.), dated April 14, 2015, which denied its cross motion for summary judgment of possession in a holdover summary proceeding.

Per Curiam.

Order (Anne Katz, J.), dated April 14, 2015, affirmed, with $10 costs.

This holdover proceeding is not susceptible to summary disposition. Although petitioner-landlord established, prima facie, that the tenant of record did not primarily reside in the East 70th Street stabilized apartment premises, triable issues are presented with respect to respondent Levy's family member succession defense. In view of the evidence in the record tending to indicate that respondent lived in the apartment his entire life and that his mother, the tenant of record with whom respondent resided, timely notified petitioner that she was vacating the premises and requesting a renewal lease in the name of her son, petitioner failed to eliminate all triable issues of fact with regard to its claim that respondent waived his succession claim by engaging in deceptive conduct.

With regard to the defaulting tenant, landlord should have moved for a default judgment rather than summary judgment (see Tornatore v Bruno, 280 AD2d 894 [2001]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: February 17, 2016