1935 Andrews Ave. Equities v Diaz

[*1] 1935 Andrews Ave. Equities v Diaz 2016 NY Slip Op 50191(U) Decided on February 22, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 22, 2016
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, J.
571171/15

1935 Andrews Avenue Equities, Petitioner-Landlord-Appellant,

against

Ramon Diaz, Respondent-Tenant-Respondent.

Landlord, as limited by its briefs, appeals from (1) an order of the Civil Court of the City of New York, Bronx County (Marian C. Doherty, J.), dated September 3, 2014, which granted tenant's motion for summary judgment dismissing the petition in a nonpayment summary proceeding, and (2) an order (same court and Judge), dated January 5, 2015, which denied landlord's motion to renew and reargue the aforesaid order.

Per Curiam.

Order (Marian C. Doherty, J.), dated January 5, 2015, insofar as appealable, reversed, with $10 costs, landlord's motion granted to the extent it sought renewal, and upon renewal, tenant's motion for summary judgment denied and the petition reinstated. Appeal from order (Marian C. Doherty, J.), dated September 3, 2014, dismissed, without costs, as academic.

Civil Court erred in denying landlord's motion to renew. Landlord reasonably believed that it was unnecessary to submit an affidavit in opposition to tenant's motion, since landlord submitted the parties' written rent stabilized lease agreement, which set forth a monthly rent of $1,250, to refute tenant's claim that he is a month-to-month tenant at a rent of $1,000 per month (see Segall v Heyer, 161 AD2d 471, 473 [1990]; CPLR 2221[e][3]). On renewal, landlord demonstrated a material triable issue as to whether tenant executed and agreed to pay the rent amount set forth in the lease.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur
Decision Date: February 22, 2016