Dexter 345, Inc. v Hanlon

[*1] Dexter 345, Inc. v Hanlon 2018 NY Slip Op 51292(U) Decided on September 13, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 13, 2018
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, P.J., Gonzalez, Edmead, JJ.
570760/17

Dexter 345, Inc., Petitioner-Landlord-Appellant,

against

Julie Hanlon, Respondent-Tenant-Respondent, -and- Tom Hanlon, Respondent-Undertenant-Respondent, -and- "John Doe" and "Jane Doe," Respondents-Undertenants.

Landlord appeals from a final judgment of the Civil Court of the City of New York, New York County (Peter M. Wendt, J.), entered on or about February 27, 2017, after a nonjury trial, which dismissed the petition in a holdover summary proceeding.

Per Curiam.

Final judgment (Peter M. Wendt, J.), entered on or about February 27, 2017, modified by reinstating the holdover petition against respondent Julie Hanlon, and remanding the matter for a new trial only as against said respondent; as modified, final judgment affirmed, with $25 costs to respondent Tom Hanlon.

We find no cause to disturb the court's determination, after a lengthy trial, that respondent Tom Hanlon is a "permanent tenant" of the subject hotel dwelling unit (Rent Stabilization Code [9 NYCRR] §2520.6[j]). It was essentially undisputed at trial that this respondent, brother of tenant of record Julie Hanlon, began residing in the premises no later than 2010, living openly in the subject unit with the knowledge of landlord's employees, and tendering money orders for the rent. Thus, he qualifies as a "permanent tenant" - a term broadly defined in the Code as "an individual or such individual's family members residing with such individual, who have continuously resided in the same building as a principal residence for a period of at least six months" (see Aimco 240 W. 73rd Street, LLC v Koren, 59 Misc 3d 127[A], 2018 NY Slip Op 50384[U] [App Term, 1st Dept 2018]; Einhorn v McCloud, 57 Misc 3d 139[A], 2017 NY Slip Op 51323[U] [App Term, 1st Dept 2017]; Kanti-Savita Realty Corp. v Santiago, 18 Misc 3d 74 [*2][2007]).

With respect to respondent Julie Hanlon, the trial court failed to comply with the mandate of CPLR 4213(b) when it rendered a decision that left "unaddressed and unresolved" the landlord's claim that tenant did not maintain the subject premises as her primary residence (see Weckstein v Breitbart, 111 AD2d 6, 8 [1985]). Given that the "contentions of the parties differ very sharply" (Power v Falk, 15 AD2d 216, 217 [1961]), and the trial court made no findings of fact or credibility with respect to nonprimary residence, this Court will not make its own findings of fact. While we would ordinarily remand the proceeding to the trial court for issuance of a decision resolving the issue, the Judge that presided at the trial has retired. Thus a new trial is necessary (see Ken Wire & Metal Prods. v Vogel's Inc., 69 AD2d 898 [1979]).

All concur.

The decision and order of this court dated June 4, 2018 (59 Misc 3d 148[A], 2018 NY Slip Op 50797[U] [App Term, 1st Dept 2018]) is hereby recalled and vacated.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Clerk of the Court
Decision Date: September 13, 2018