Norfolk Dev. LLC v Kee

[*1] Norfolk Dev. LLC v Kee 2009 NY Slip Op 50851(U) [23 Misc 3d 136(A)] Decided on May 5, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 5, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon P.J., Schoenfeld, Heitler JJ
570185/09.

Norfolk Development LLC Petitioner-Landlord-Appellant,

against

Elizabeth Kee a/k/a Rita Elizabeth Kee, Respondent-Tenant-Respondent, -and- Renato Stabile and "John Doe" and/or "Jane doe" Respondents-Undertenants.

Landlord appeals from an order of the Civil Court of the City of New York, New York County (David B. Cohen, J.), entered June 27, 2008, which granted tenant's motion for summary judgment dismissing the petition in a holdover summary proceeding.

Per Curiam.

Order (David B. Cohen, J.), entered June 27, 2008, reversed, with $10 costs, tenant's motion for summary judgment denied and petition reinstated.

This nonprimary residence holdover proceeding is not susceptible to summary dismissal, since there exist material questions of fact as to the nature and extent of tenant's presence at and usage of the subject Norfolk Street apartment and a Duane Street apartment allegedly leased by her (now former) boyfriend. The record, including tenant's own deposition testimony and supporting affidavit, reveals that, during the two-year period referenced in the petition, tenant spent, at a minimum, three days a week at the Duane Street apartment, where she maintained a study space or "studio," and where she at times received her mail and kept her dog and its "stuff," and that tenant allowed a friend, respondent Stabile, to stay in the subject Norfolk Street apartment at least "occasionally". The evidence thus failed to establish as a matter of law that tenant maintained her primary residence at the Norfolk Street apartment, and the drastic remedy of summary judgment was unwarranted.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur
Decision Date: May 05, 2009