Elk 300 E 83 LLC v Dowd

[*1] Elk 300 E 83 LLC v Dowd 2016 NY Slip Op 50976(U) Decided on June 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 27, 2016
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Hunter, Jr., J.P., Lowe, III, Ling-Cohan, JJ.
570164/16

Elk 300 E 83 LLC, Petitioner-Landlord-Appellant,

against

Rosemary Dowd, Respondent-Tenant, and Michael Dowd and Catherine Dowd, Respondents-Undertenants-Respondents.

Petitioner-landlord appeals from an order of the Civil Court of the City of New York, New York County (Michael L. Weisberg, J.), dated December 23, 2015, which denied its motion for summary judgment of possession in a holdover summary proceeding.

Per Curiam.

Order (Michael L. Weisberg, J.), dated December 23, 2015, affirmed, with $10 costs.

We agree with Civil Court that this holdover proceeding is not susceptible to summary disposition, since petitioner failed to eliminate all triable issues of fact with respect to respondent Michael Dowd's family member succession defense (see New York City Rent and Eviction Regulations [9 NYCRR] § 2204.6[d][3][i]). On this record, triable issues are presented as to when tenant permanently vacated the apartment, particularly since tenant's attorney-in-fact made rent payments to petitioner and accepted Department of Social Services' shelter checks during the period in which tenant resided in a nursing facility.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

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