PS 157 Lofts LLC v Austin

[*1] PS 157 Lofts LLC v Austin 2013 NY Slip Op 52241(U) Decided on December 31, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 31, 2013
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Hunter, Jr., JJ
570467/13.

PS 157 Lofts LLC and 327 St Nicholas LLC, Petitioner-Appellant,

against

Kimberly Austin, Julius Dixson, and Juelle Dixson, Respondents-Respondents, - and - "John Doe & Jane Doe," Respondents-Undertenants.

Petitioner appeals from an order of the Civil Court of the City of New York, New York County (Peter M. Wendt, J.), dated April 29, 2013, which denied its motion for summary judgment on the holdover petition.

Per Curiam.

Order (Peter M. Wendt, J.), dated April 29, 2013, reversed, with $10 costs, petitioner's motion for summary judgment granted, and final judgment awarded in favor of petitioner upon its cause of action for possession. 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.

In opposition to petitioner's prima facie showing of entitlement to summary judgment on its possessory cause of action, respondents failed to raise a triable issue with respect to their succession defense. The undisputed record evidence establishes that while the record tenant of the stabilized apartment here at issue began residing elsewhere in 2002, she continued to sign a series of lease renewals extending her tenancy in the subject apartment through November 30, 2008, and, as late as November 2005, filed a complaint at DHCR pertaining to the subject apartment. Thus, tenant "cannot be found to have permanently vacated the apartment at any time prior to the expiration of the last lease renewal on [November 30, 2008]" (Third Lenox Terrace Associates v Edwards, 91 AD3d 532, 533 [2012]). Given this chronology, and in the absence of any evidence tending to show that respondents "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]), respondents' succession claim must fail (see Third Lenox Terrace Assoc. v Edwards, 91 AD3d at 533). [*2]

Nor have respondents raised a triable issue as to whether petitioner recognized them as tenants in their own right or waived the right to contest their continued occupancy. On this record, and given the named tenant's continued involvement with the apartment for a period of years following her earlier departure, it does not avail respondents that the predecessor owner may have known of their presence in the apartment or accepted an unspecified number of rent payments on behalf of respondent Austin, tenant's sister. Similarly, no independent tenancy rights were created by the record tenant's alleged conduct in unilaterally adding respondent Austin's name to a prior (unproduced) renewal lease.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: December 31, 2013