75 Bruce, LLC v Diaz

[*1] 75 Bruce, LLC v Diaz 2009 NY Slip Op 52127(U) [25 Misc 3d 131(A)] Decided on October 19, 2009 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 19, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., TANENBAUM and MOLIA, JJ
2008-1784 W C.

75 Bruce, LLC, Appellant,

against

Josefina Diaz, Respondent, -and- RITA COLLAZO, "JOHN DOE" and "JANE DOE", Undertenants.

Appeal from an order of the City Court of Yonkers, Westchester County (Mary Anne Scatteretico-Naber, J.), dated June 30, 2008. The order denied landlord's motion to, inter alia, restore the matter to the calendar.

ORDERED that the order is affirmed without costs.

Landlord commenced this residential holdover summary proceeding, alleging that tenant had illegally sublet the subject rent-stabilized apartment and that her
subtenant was harboring a dog and birds in violation of the lease. Tenant answered, denying that she had any undertenants or that she had vacated the apartment, and asserting that her daughter was in temporary residence in the apartment because she had been constructively evicted from her own apartment in the building due to mold, mildew and vermin. Thereafter, the parties entered into a stipulation of settlement in which tenant represented that she resided in the subject premises as her primary residence and that her daughter had moved back into her own apartment in the building; that, except as provided by law, tenant would not sublet her apartment or "have issue, relatives, or any person stay in her apartment during her absence;" and that "the dog in question" belonged to tenant's daughter. The stipulation also provided that landlord could move to restore the proceeding if there was a breach of the agreement or if there were any misrepresentations in the agreement.

Landlord subsequently moved to restore the proceeding to the calendar, and, upon restoration, to allow landlord to amend the petition to include a claim of nonprimary residence and to conduct discovery. To support its motion, landlord relied primarily on an affidavit of one of its principals, who claimed that he had seen tenant's daughter entering and exiting tenant's apartment, sometimes with the dog. The affidavit gave no further detail regarding the visits. Landlord also claimed that tenant had made a misrepresentation in the stipulation regarding her primary residence. The City Court denied landlord's motion, and we affirm. [*2]

The affidavit submitted by landlord in support of its motion was devoid of any detail that would demonstrate that tenant's daughter had not moved out of the subject premises or that the dog in question did not belong to tenant's daughter. Further, landlord offered no proof that it had learned any facts since entering into the stipulation that would provide a good-faith basis to believe that tenant had made any misrepresentations in the stipulation. As landlord established no sufficient basis to restore the proceeding, its motion was properly denied.

Nicolai, P.J., Tanenbaum and Molia, JJ., concur.
Decision Date: October 19, 2009