Salaway v Bosquez

[*1] Salaway v Bosquez 2014 NY Slip Op 51571(U) Decided on November 3, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 3, 2014
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Ling-Cohan, JJ.
570397/14

Elizabeth Salaway, Petitioner-Respondent,

against

Mario Bosquez, Respondent-Appellant, -and- "John Doe" and "Jane Doe," Respondents-Undertenants.

Respondent Mario Bosquez appeals from (1) an order of

Civil Court of the City of New York, New York County (Brenda S. Spears, J.), dated June 24, 2013, which denied his motion for a stay of the within holdover summary proceeding pending the determination of his Loft Board coverage application and granted petitioner's cross motion for summary judgment of possession, and (2) an order (same court and Judge), dated June 5, 2014, which denied respondent's motion for leave to reargue and renew the aforesaid order.

Per Curiam.

Order (Brenda S. Spears, J.), dated June 24, 2013, modified to deny petitioner's cross motion for summary judgment of possession; as modified, order affirmed, without costs. Appeal from order (Brenda S. Spears), dated June 5, 2014, dismissed, without costs, as academic with respect to renewal and as taken from a nonappealable order with respect to reargument.

The record raises triable issues of fact concerning respondent Bosquez's illusory tenancy defense, including whether petitioner-prime tenant "engaged in unlawful rent profiteering after long ago vacating the premises" (545 Eighth Ave. Assocs. v Shanaman, 12 Misc 3d 66, 68 [2006]; see Primrose Mgt. Co. v Donahoe, 253 AD2d 404 [1998]), and whether the (non-party) landlord had actual or constructive knowledge of the subleasing arrangement between petitioner and respondent (see Bruenn v Cole, 165 AD2d 443 [1991]). The conflicting evidence presents questions of credibility that must await trial (see Brown Simon & Furtsch (88th) LLC v Jacobs, 7 Misc 3d 135[A], 2005 NY Slip Op 50767[U] [App Term, 1st Dept 2005]).

We sustain the denial of respondent's motion to stay the proceeding pending the Loft Board's resolution of his belatedly-filed (post-petition) coverage application. The bona fides of [*2]respondent's illusory tenancy defense may readily be adjudicated in Civil Court without resort to agency involvement (see generally Missionary Sisters of the Sacred Heart v Meer, 131 AD2d 393 [1987]; Bozzi v Goldblatt, 160 AD2d 647 [1990]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur

Decision Date: November 03, 2014