Bleecker St. Invs., LLC v Zabari

[*1] Bleecker St. Invs., LLC v Zabari 2016 NY Slip Op 50268(U) Decided on March 8, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 8, 2016
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Hunter, Jr., JJ.
570731/15

Bleecker Street Investors, LLC Petitioner-Landlord-Appellant,

against

Doron Zabari, Respondent-Tenant-Respondent, -and John Doe and Jane Doe, Respondents-Undertenants.

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 (Arlene H. Hahn, J.), dated September 10, 2014, which denied its motion for summary judgment of possession and to dismiss tenant's affirmative defenses in a holdover summary proceeding.

Per Curiam.

Order (Arlene. H. Hahn, J.), dated September 10, 2014, reversed, with $10 costs, landlord's motion for summary judgment on its cause of action for possession granted, and matter remanded to Civil Court for a hearing to determine the amount of use and occupancy and reasonable attorney's fees due landlord. Execution of the warrant of eviction shall be stayed for 60 days from service of a copy of this order with notice of entry.

Landlord demonstrated its prima facie entitlement to summary judgment on the holdover petition, by submitting evidence demonstrating that tenant's month-to-month tenancy was terminated and that he had no right to continued possession of the subject Bleeker Street apartment. In opposition, tenant failed to raise any triable issue. Tenant is precluded from claiming that the apartment is rent regulated by virtue of the May 19, 2005 order of the Loft Board, which held that the subject unit is not subject to rent regulation, and the unappealed dismissal of his CPLR article 78 petition challenging that determination (see Chatsworth 72nd St. Corp. v Rigai, 74 Misc 2d 298 [1973], affd 43 AD2d 685 [1973), affd 35 NY2d 984 [1975]; Southside Dev. Co. v Mitchell, 156 AD2d 268 [1989]). Although the article 78 court also indicated that tenant "may raise rent status in any landlord-tenant proceeding," "this was merely dictum wholly unnecessary to [Supreme] Court's holding" (Sahn v AFCO Indus., 192 AD2d 480, 481 [1993]), and therefore not binding on this court (see 233233 Co. v City of New York, 171 AD2d 492, 496 [1991]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: March 08, 2016