BCD Delancey LLC v Jian Gou Lin

[*1] BCD Delancey LLC v Jian Gou Lin 2013 NY Slip Op 52232(U) Decided on December 30, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 30, 2013
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Hunter, Jr., JJ
570911/13.

BCD Delancey LLC, Petitioner-Landlord-Appellant,

against

Jian Gou Lin a/k/a Lin Jian Guo, Respondent-Tenant, -and- Ding Juan Zhang, Respondent-Undertenant-Respondent.

Petitioner-landlord appeals from an order of the Civil Court of the City of New York, New York County (Timmie E. Elsner, J.), dated September 11, 2012, which, inter alia, denied its motion for summary judgment of possession in a holdover summary proceeding.

Per Curiam.

Order (Timmie E. Elsner, J.), dated September 11, 2012, reversed, with $10 costs, petitioner's motion for summary judgment granted, and final judgment awarded in favor of petitioner on its cause of action for possession. Issuance of the warrant of eviction shall be stayed for 30 days from service of a copy of this order with notice of entry.

Respondent Ding Juan Zhang, the sister of the departed rent stabilized tenant, failed to raise a triable issue with respect to her succession defense. The record evidence, including respondent's own deposition testimony and opposing affidavit, conclusively established that while tenant took up primary residence in Maryland in or about December 2002, he continued to sign renewal leases, the most recent of which expired on September 30, 2010, and that rent was paid with checks bearing tenant's name at least through March 2009. Thus, tenant "cannot be found to have permanently vacated the apartment at any time prior to the expiration of the last lease renewal on [September 30, 2010]" (Third Lenox Terrace Associates v Edwards, 91 AD3d 532, 533 [2012]). On this record, and in the absence of any evidence tending to show that respondent "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's succession claim must fail (see Third Lenox Terrace Assoc. v Edwards, 91 AD3d at 533).

We note that the deposition transcript, though unsigned, was properly considered since it was certified by the [*2]
reporter and was not challenged as inaccurate (see Bennett v
Berger, 283 AD2d 374 [2001]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur

Decision Date: December 30, 2013