157 E. 89th St., LLC v McAuliffe

[*1] 157 E. 89th St., LLC v McAuliffe 2014 NY Slip Op 50270(U) Decided on February 28, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 28, 2014
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ
570016/14.

157 East 89th Street, LLC, Petitioner-Appellant,

against

Mark McAuliffe, Respondent-Respondent, -and- "John and/or Jane Doe," Respondents.

Petitioner, as limited by its briefs, appeals from that portion of an order of the Civil Court of the City of New York, New York County, (Sheldon J. Halprin, J.), dated October 25, 2013, which denied its motion for summary judgment of possession in a licensee eviction proceeding.

Per Curiam.

Order (Sheldon J. Halprin, J.), dated October 25, 2013, insofar as appealed from, affirmed, with $10 costs.

This licensee eviction proceeding is not ripe for summary disposition on the sparse, pre-discovery record now before us, since petitioner failed to eliminate all triable issues of fact with respect to respondent's family member succession defense. The moving affidavit submitted by petitioner's managing agent was devoid of any particularized allegations as to the nature or frequency of respondent's usage of or presence at the subject rent controlled apartment prior to the death of his parents, the record tenants, and, indeed, the affidavit focused largely on petitioner's alternative request for discovery on the succession issue, an application properly granted by the motion court. While respondent would ultimately bear the "affirmative obligation" to establish succession rights at trial (see 9 NYCRR 2204.6[d][2]), it was petitioner, as the movant for summary judgment, which had the initial burden to demonstrate as a matter of law the absence of triable issues regarding the succession defense. Petitioner's failure to meet that burden mandates denial of its summary judgment motion, irrespective of the sufficiency of respondent's opposition (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: February 28, 2014