David Ellis Real Estate, LP v Fitch

[*1] David Ellis Real Estate, LP v Fitch 2009 NY Slip Op 50522(U) [23 Misc 3d 126(A)] Decided on March 26, 2009 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 26, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon P.J., Schoenfeld, Heitler JJ
570766/07.

David Ellis Real Estate, LP Petitioner-Landlord-Appellant,

against

Mark Fitch and Phoebe Fitch, Respondents-Tenants-Respondents, Gayle Dizon, Russell Fernandez, "John Doe" and "Jane Doe" Respondents-Occupants.

Landlord, as limited by its briefs, appeals from so much of an order of the Civil Court of the City of New York, New York County (Kevin C. McClanahan, J.), dated April 10, 2007, as denied its motion for summary judgment on the holdover petition.

PER CURIAM.

Order (Kevin C. McClanahan, J.), dated April 10, 2007, affirmed, with $10 costs.
We sustain the denial of landlord's motion for
summary judgment on the holdover petition, since it failed to conclusively establish that respondents' living arrangements — which, so far as shown, entailed shared access to common areas and no subdivision or partitioning of the five-bedroom loft unit — created an illegal sublet, and not a roommate situation which would trigger no eviction remedy (see BLF Realty Corp. v Kasher, 299 AD2d 87 [2002], lv dismissed 100 NY2d 535 [2003]; Handwerker v Ensley, 261 AD2d 190 [1999]; see also Ishida v Markowicz, 18 AD3d 502 [2005]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: March 26, 2009