Simry Realty Corp. v Ondrias

[*1] Simry Realty Corp. v Ondrias 2013 NY Slip Op 50150(U) Decided on February 1, 2013 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 1, 2013
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, J.P., Hunter, Jr., Torres, JJ
570512/12.

Simry Realty Corp., Petitioner-Appellant,

against

Dematra Ondrias, Respondent-Respondent.

Petitioner appeals from an order of the Civil Court of the City of New York, New York County (David J. Kaplan, J.), dated October 17, 2011, which denied, as moot, its motion to strike respondent's answer and granted respondent's cross motion to dismiss the petition in a holdover summary proceeding.

Per Curiam.

Order (David J. Kaplan, J.), dated October 17, 2011, reversed, with $10 costs, respondent's cross motion denied, and petition reinstated.

This licensee holdover proceeding, in defense of which respondent Ondrias claimed the right to succeed to the rent controlled tenancy of her deceased mother, should not have been summarily dismissed. The single, postpetition correspondence sent by petitioner - written in response to "illegal renovations" allegedly undertaken by respondent in the apartment premises - cannot be read so broadly as to constitute a formal acknowledgment of any tenancy rights on the part of respondent or to somehow vitiate the previously served notice to quit or resolve the disputed occupancy issues actively litigated herein. The creation of a landlord-tenant relationship "only arises from a legitimate manifestation of intent on the part of the parties to create such a relationship" (Coleman v Dabrowski, 163 Misc 2d 763, 765 [1994]), and should not be reduced to a matter of gamesmanship, seduction and artifice (id.).

In reinstating the holdover petition, we do not pass upon petitioner's motions to strike respondent's answer and for other relief, which were denied below as moot. Our disposition is without prejudice to petitioner's right, if so advised, to renew its applications for such relief in Civil Court.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: February 01, 2013