686 W. 204th St. LLC v Athanasios

[*1] 686 W. 204th St. LLC v Athanasios 2014 NY Slip Op 51402(U) Decided on September 22, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 22, 2014
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Hunter, Jr., Ling-Cohan, JJ.
570080/14

686 W. 204th Street LLC, Petitioner-Landlord-Appellant, -

against

Joselin Clara Athanasios and Shawn Addison Athanasios, Respondents-Tenants-Respondents, - and - "John Doe" and "Jane Doe," Respondents-Undertenants.

Landlord appeals from an order of the Civil Court of the City of New York, New York County (Sabrina B. Kraus, J.), entered December 24, 2013, which, inter alia, denied its motion to strike tenants' affirmative defenses and counterclaim and for summary judgment on the holdover petition.

Per Curiam.

Order (Sabrina B. Kraus, J.), entered December 24, 2013, affirmed, with $10 costs.

The holdover summary proceeding seeks possession of the demised stabilized apartment premises based on allegations that tenants, husband and wife, failed to timely vacate the apartment in violation of the parties' July 22, 2013 pre-litigation "Surrender Agreement," the creation of which was initially solicited by the then unrepresented tenants and the terms of which required tenants to "surrender[ ] all right, title and interest in and to" the apartment and move out by August 31, 2013 in exchange for the landlord's forgiveness of the August 2013 rent. Landlord's main motion for summary judgment on the holdover petition was properly denied, since the present record raises but does not resolve several mixed questions of law and fact, including whether the proceeding was properly maintainable without a formal termination notice (see Rent Stabilization Code § 2524.2[a]; see generally Kaycee W. 113th St. Corp. v Diakoff, 160 AD2d 573, 573 [1990]; cf. 68 Assocs. LLC v Jensen, 4 Misc 3d 127[A], 2004 NY Slip Op 50621[U][App Term, 1st Dept 2004]), whether an eviction remedy was contemplated by the parties as part of the surrender agreement, and, if each of these questions is answered affirmatively, whether enforcement of the surrender agreement is barred by public policy or equitable concerns (but see Merwest Realty Corp. v Prager, 264 AD2d 313 [1999]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concurI concurI concur
Decision Date: September 22, 2014