72A Realty Assoc. v Healey

[*1] 72A Realty Assoc. v Healey 2010 NY Slip Op 50075(U) [26 Misc 3d 132(A)] Decided on January 21, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 21, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Shulman, Hunter, JJ
570586/09.

72A Realty Associates, Petitioner-Landlord-Appellant,

against

Margaret Healey, Respondent-Tenant, Elizabeth Kron, John Doe and Jane Doe, Respondents-Undertenants-Respondents.

Petitioner-landlord appeals from an order of the Civil Court of the City of New York, New York County (David J. Kaplan, J.), dated July l7, 2009, which denied its motion for summary judgment and reinstated respondent Elizabeth Kron's fifth affirmative defense and first and second counterclaims in a holdover summary proceeding.

Per Curiam.

Order (David J. Kaplan, J.), dated July l7, 2009,
reversed, with $10 costs, petitioner-landlord's motion for summary judgment granted, the fifth defense and first and second counterclaims stricken, final judgment directed in favor of the petitioner upon its cause of action for possession, and matter remanded to Civil Court for a hearing to determine the amount of use and occupancy and reasonable attorneys' fees due petitioner. Issuance of the warrant of eviction shall be stayed for 30 days from the service of a copy of this order with notice of entry.

Respondent Kron failed to raise a triable issue with respect to her succession defense. The record evidence, including respondent's own deposition testimony, conclusively establishes that respondent-tenant Healey had moved to Los Angeles several years ago, but did not permanently vacate the subject rent stabilized apartment premises until early 2008. Since respondent Kron failed to adduce any evidence that she "resided with the tenant" in the subject apartment during the two-year period immediately preceding the tenant's permanent vacatur (Rent Stabilization Code [9 NYCRR] § 2523.5[b][1]), respondent Kron's succession claim must fail (see 72A Realty Assoc. v Kutno, 15 Misc 3d 100 [2007]; East 96th St. Co., LLC v Santos, 13 Misc 3d 133[A] [2006]; 360 W. 55th St. L.P. v Anvar, 13 Misc 3d 7 [2006]).

Civil Court erred in, sua sponte, reinstating respondent Kron's affirmative defense and counterclaims based on discrimination under title eight of the Administrative Code of the City of New York. These ambiguous claims were not litigated in the summary judgment motion and, in any event, were not supported in any manner by the record produced on that motion. Since [*2]respondent did not seek reinstatement of the previously dismissed affirmative defense and related counterclaims and petitioner was not given an opportunity to be heard on the issue, Civil Court erred in reinstating them (see generally Myung Chun v North Am. Mtge. Co., 285 AD2d 42 [2001]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: January 21, 2010