7 W. 92nd St. Hous. Dev. Fund Corp. v Amaro

[*1] 7 W. 92nd St. Hous. Dev. Fund Corp. v Amaro 2018 NY Slip Op 50371(U) Decided on March 22, 2018 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 22, 2018
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Ling-Cohan, J.P., Gonzalez, Edmead, JJ.
570437/17

7 West 92nd Street Housing Development Fund Corporation, Petitioner-Landlord-Appellant,

against

Carmen Amaro, Respondent-Tenant-Respondent.

Landlord, as limited by its brief, appeals from so much of an order of the Civil Court of the City of New York, New York County (Jack Stoller, J.), dated April 4, 2016, as denied, in part, its motion for summary judgment in a holdover summary proceeding and restored the matter for trial on the limited issue of whether tenant engaged in conduct amounting to a breach of lease.

Per Curiam.

Order (Jack Stoller, J.), dated April 4, 2016, affirmed, without costs.

This holdover proceeding, based upon allegations that tenant violated the proprietary lease by making certain alterations in her apartment, is not susceptible to summary disposition. The record presents triable issues of fact concerning the nature and extent of the work done in tenant's bathroom (see West 15th St. Assoc., L.P. v Fares, 31 Misc 3d 149[A], 2011 NY Slip Op 51053[U] [App Term, 1st Dept 2011]; 40 E. 68th St. Co. v Habbas, 22 Misc 3d 135[A], 2009 NY Slip Op 50284[U] [App Term, 1st Dept 2009]). The present record, including the submissions of landlord's expert, failed to establish the absence of triable issues of fact as to whether tenant breached the lease. In these circumstances, Civil Court properly restored the case for a trial, at which sworn evidence can be received and credibility assessed (see Sherman Realty LLC v Kevelier, 58 Misc 3d 144[A], 2017 NY Slip Op 51915[U] [App Term, 1st Dept 2017]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: March 22, 2018