P & J Hous. Partners, LLC v Alvarado

[*1] P & J Hous. Partners, LLC v Alvarado 2011 NY Slip Op 52310(U) Decided on December 22, 2011 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 22, 2011
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: Shulman, J.P., Hunter, Jr., Torres, JJ
11-175.

P & J Housing Partners, LLC, Petitioner-Appellant,

against

Rubin Alvarado, Respondent-Respondent, -and- Danny Valentine, Cory Ramos, "John Doe" and/or "Jane Doe," Respondents.

Petitioner appeals, as limited by its brief, from those portions of an order of the Civil Court of the City of New York, New York County (John H. Stanley, J.), dated February 2, 2011, which denied its motion for summary judgment on the petition and to strike respondent's jury demand in a holdover summary proceeding.

Per Curiam.

Order (John H. Stanley, J.), dated February 2, 2011, modified by granting petitioner's motion to strike respondent Rubin Alvarado's jury demand and, as modified, affirmed, without costs.

We agree with Civil Court that this licensee holdover summary proceeding is not susceptible to summary disposition. The record so far developed presents mixed questions of law and fact, including the rent regulatory status of the subject apartment following the City's in rem tax foreclosure upon the building premises and its subsequent sale to petitioner (see Matter of Oteri v Temporary State Hous. Rent Comm., 9 AD2d 529, 530 [1960], affd no opn 8 NY2d 810 [1960]; see also President Park Inc. v Brabham, 167 Misc 2d 700, 705-706 [1995]), as well as the nature of respondent Rubin Alvarado's relationship to the apartment and to the deceased tenant of record, Edna Grateron. On this record and at this juncture, it cannot be said as a matter of law that Alvarado waived his succession claim (see Lex & Third 116th St. Corp. v Marrero, 23 Misc 3d 59 [2009]; cf. Hughes v Lenox Hill Hosp., 226 AD2d 4, 13-14 [1996], lv denied 90 NY2D 829 [1997]). [*2]

However, petitioner's motion to strike Alvarado's jury demand should have been granted, since the original 1959 lease agreement contained an enforceable jury waiver provision (see Teitler v Tetenbaum, 123 Misc 2d 702, 703 [1984]; Alden Raleigh Estates v King, 2003 NY Slip Op 51160[U] [2003]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: December 22, 2011