13775 Realty, LLC v Foglino

[*1] 13775 Realty, LLC v Foglino 2016 NY Slip Op 50335(U) Decided on March 21, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 21, 2016
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, J.P., Hunter, Jr., Ling-Cohan, JJ.
570011/16

13775 Realty, LLC, Petitioner-Landlord-Appellant,

against

Annette Foglino, Respondent-Tenant, -and- "John Doe, and "Jane Doe," Respondents-Undertenants.

Landlord, as limited by its briefs, appeals from that portion of an order of the Civil Court of the City of New York, New York County (Jack Stoller, J.), dated December 7, 2015, which denied its motion for summary judgment on its illegal sublet profiteering cause of action in a holdover summary proceeding.

Per Curiam.

Order (Jack Stoller, J.), dated December 7, 2015, insofar as appealed from, affirmed, with $10 costs.

We agree that landlord's possessory claim based, in part, on allegations that tenant listed her rent stabilized apartment on the Airbnb website and engaged in rent profiteering, should be decided at a plenary trial, and not on summary judgment. Landlord's submission below, consisting largely of hearsay evidence, was insufficient to satisfy its initial burden of establishing, prima facie, that tenant engaged in commercial exploitation or rent profiteering (see Rent Stabilization Code [9 NYCRR] §§ 2524.3[h], 2525.6[b]; Ginezra Assoc. LLC v Ifantopoulos, 70 AD3d 427, 430 [2010]). Among the issues that remain unresolved on the prediscovery record now before us are the number of times tenant sublet the premises through Airbnb or otherwise and the amount of any overcharges (see 335-7 LLC v Steele, 43 Misc 3d 144[A], 2014 NY Slip Op 50891[U] [App Term, 1st Dept 2014]; see also Cambridge Dev., LLC v Staysna, 68 AD3d 614 [2009]).

Given landlord's failure to meet its initial burden of demonstrating entitlement to judgment as a matter of law, summary judgment was properly denied, irrespective of the sufficiency of tenant's opposing papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: March 21, 2016