23 Manhattan Val. N., LLC v Bass

[*1] 23 Manhattan Val. N., LLC v Bass 2010 NY Slip Op 51508(U) [28 Misc 3d 139(A)] Decided on August 24, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 24, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Schoenfeld, J.
570199/10

23 Manhattan Valley North, LLC, Petitioner-Appellant,

against

Elizabeth Bass, John/Jane Doe, Respondents-Respondents.

Petitioner appeals, as limited by its brief, from that portion of an order of the Civil Court of the City of New York, New York County (Eardell J. Rashford, J.), dated September 25, 2009, which granted respondents' motion for summary judgment dismissing the petition in a holdover summary proceeding.

Per Curiam.

Order (Eardell J. Rashford, J.), dated September 25, 2009, insofar as appealed from, reversed, with $10 costs, respondents' motion denied, petition reinstated and matter remanded for further proceedings.

This licensee holdover proceeding is not susceptible to summary disposition, since respondents failed to establish that petitioner's acceptance of rent from respondent Elizabeth Bass, in the circumstances presented, constituted a waiver of petitioner's right to object to respondents' continued occupancy of the apartment premises (see Sullivan v Brevard Assoc., 66 NY2d 489 [1985]; Brooks v Kenton Assoc. Ltd., 169 AD2d 466 [1991]). In light of Bass' concession that she executed three renewal leases addressed to Nikki Robinson, the rent stabilized tenant of the apartment, a triable issue exists as to whether respondents misled petitioner into believing that Robinson still resided at the premises. Additionally, respondents failed to make a prima facie showing that Robinson was an illusory prime tenant. The nature of the relationship between respondents and Bass is unclear on the present record, and respondents' own evidence raises a triable issue as to whether they were Robinson's roommates, as opposed to subtenants.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: August 24, 2010