335-7 LLC v Steele

[*1] 335-7 LLC v Steele 2014 NY Slip Op 50891(U) Decided on June 9, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 9, 2014
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Ling-Cohan, JJ.
571103/13

335-7 LLC, Petitioner-Landlord-Appellant,

against

Tracy Steele, Respondent-Tenant-Respondent, - and - "John Doe" and/or "Jane Doe," Respondents-Undertenants.

Landlord appeals from an order of the Civil Court of the City of New York, New York County (Sheldon J. Halprin, J.), dated October 17, 2013, which denied its motion to strike tenant's affirmative defenses and for summary judgment on the petition in a holdover summary proceeding.

Per Curiam.

Order (Sheldon J. Halprin, J.), dated October 17, 2013, affirmed, with $10 costs, for the reasons stated by Sheldon J. Halprin, J. at Civil Court.

We agree that landlord's possessory claim, based on allegations that tenant engaged in rent profiteering with respect to the three-bedroom rent stabilized apartment here at issue, should be decided at a plenary trial, and not on summary judgment. The present record raises but does not resolve several mixed questions of law and fact, including whether the series of short-term occupants allowed periodically by tenant to stay in the apartment between March 2010 and December 2010 were roommates or, instead, subtenants (see and compare BLF Realty Holding Corp., 299 AD2d 87, 94-95 [2002], lv dismissed 100 NY2d 535 [2003]; see also First Hudson Capital, LLC v Seaborn, 54 AD3d 251 [2008], appeal dismissed 11 NY3d 894 [2008]) and, if subtenants, whether the claimed overcharges were so substantial and pervasive as to constitute incurable rent profiteering (see Ginezra Assocs. LLC v Ifantopoulous, 70 AD3d 427, 430 [2010]; see also Cambridge Dev., LLC v Staysna, 68 AD3d 614 [2009]). This latter issue hinges on factual matters relating to the extent, chronology and duration of the overcharges, matters best adjudicated on a more complete record.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concurI concurI concur
Decision Date: June 09, 2014