206 W. 104th St. LLC v Zapata

[*1] 206 W. 104th St. LLC v Zapata 2014 NY Slip Op 51747(U) Decided on December 15, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 15, 2014
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Shulman, Hunter, Jr., JJ.
570039/12

206 West 104th Street LLC, Petitioner-Landlord-Appellant, -

against

Miguel Zapata and Edward Caceras, Respondents-Tenants-Respondents, -and- Jeff Zapata, Respondent-Undertenant.

Petitioner-landlord, as limited by its briefs, appeals from so much of an order of the Civil Court of the City of New York, New York County (Michelle D. Schreiber, J.), entered June 16, 2014, as granted respondent Jeff Zapata's motion to amend his answer to add the defense of laches, and denied petitioner's cross motion to dismiss respondent's succession defense and for summary judgment of possession in a holdover summary proceeding.

Per Curiam.

Order (Michelle D. Schreiber, J.), entered June 16, 2014, insofar as appealed from, reversed, with $10 costs, respondent Jeff Zapata's motion to amend his answer denied, and petitioner's cross motion for summary judgment of possession granted. Issuance of the warrant of eviction shall be stayed for 30 days from service of a copy of this order with notice of entry.

Respondent Jeff Zapata failed to raise a triable issue with respect to his proffered family member succession defense. The record evidence, including respondent's own deposition testimony, conclusively established that although the record tenants, including respondent's father, Miguel Zapata ("Miguel"), relocated to Puerto Rico in the early 1990s, Miguel continued to sign renewal leases, the most recent of which expired on August 31, 2006, and that rent was paid with money orders bearing the name of "M. Zapata" or "Zapata" through July 2006. Thus, Miguel "cannot be found to have permanently vacated the apartment at any time prior to the expiration of the last lease renewal on [August 31, 2006]" (Third Lenox Terrace Associates v Edwards, 91 AD3d 532, 533 [2012]). On this record, and in the absence of any claim or showing that respondent "resided with" Miguel in the subject apartment during the two-year period immediately preceding Miguel's permanent vacatur (Rent Stabilization Code [9 NYCRR] § 2523.5[b][1]), respondent's succession claim must fail (see Third Lenox Terrace Assoc. v Edwards, 91 AD3d at 533).

Nor has respondent raised a triable issue as to whether petitioner recognized him as a tenant in his own right or waived the right to contest his continued occupancy (see Sullivan v Brevard Assocs., 66 NY2d 489, 495 [1985]; 117 W. 57th St. Realty Corp. v Estate of Hultgren, 205 AD2d 363 [1994], revg NYLJ, Sept. 14, 1993, at 21, col 1, for reasons stated in dissent of McCooe, J. at Appellate Term). Respondent's motion to amend his answer to add the defense of laches should have been denied, because the proposed amendment lacked merit (see 245 Realty Associates v Sussis, 243 AD2d 29, 32-33 [1998]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: December 15, 2014