Villafane v Industrial Constr. Mgt., Ltd.

Villafane v Industrial Constr. Mgt., Ltd. 2016 NY Slip Op 01753 Decided on March 10, 2016 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 10, 2016
Tom, J.P., Andrias, Saxe, Kapnick, JJ.
481 300330/09

[*1]George L. Villafane, Plaintiff-Appellant,

v

Industrial Construction Management, Ltd., Defendant-Respondent.

Raphaelson & Levine Law Firm, P.C., New York (Steven C. November of counsel), for appellant.

Burke, Conway, Loccisano & Dillon, White Plains (Michael G. Conway of counsel), for respondent.

Order, Supreme Court, Bronx County (Howard H. Sherman, J.), entered March 27, 2015, which granted defendant's motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion denied.

Defendant failed to establish prima facie that it is an out-of-possession landlord with no right of reentry or maintenance (see Vasquez v RVA Garage , 238 AD2d 407 [2d Dept 1997]). In addition to testimony as to the terms of an oral lease agreement with the commercial tenant, defendant offered only a carefully tailored affidavit by the tenant's principal, who is also the

mother of defendant's principal. This evidence is not sufficient to eliminate any material issues of fact from the case (see Winegrad v New York Univ. Med. Ctr. , 64 NY2d 851 [1985]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 10, 2016

CLERK