PB 165 William St. Holdings LLC v Sero-Boim

[*1] PB 165 William St. Holdings LLC v Sero-Boim 2019 NY Slip Op 50132(U) Decided on January 30, 2019 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 30, 2019
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, P.J., Ling-Cohan, Edmead, JJ.
570214/18

PB 165 William Street Holdings LLC, Petitioner-Landlord-Respondent,

against

Dan Sero-Boim a/k/a Dan Sero-Boin, Respondent-Tenant, -and- Anastacia Kurylo, Michael Kurylo, and "John Doe" & "Jane Doe,' Respondents-Undertenants-Appellants.

Respondents-undertenants Anastacia Kurylo and Michael Kurylo appeal from those portions of an order of the Civil Court of the City of New York, New York County (Sabrina B. Kraus, J.), dated July 11, 2016, which granted petitioner-landlord's motion for summary judgment dismissing the first affirmative defense and denied respondents-undertenants' cross motion for summary judgment dismissing the petition in a holdover summary proceeding.

Per Curiam.

Order (Sabrina B. Kraus, J.), dated July 11, 2016, modified to the extent of denying petitioner's motion and reinstating the first affirmative defense; as modified, order affirmed, with $10 costs.

Respondents-undertenants' waiver defense should not have been summarily dismissed, since, in our view, an issue of fact is presented as to whether petitioner's acceptance of rent from respondents over at least a seven-year period, constituted a waiver of petitioner's right to object to respondents' continued occupancy of the premises (see Park Holding Co. v Power, 161 AD2d 143 [1990]; 80 Delancey, LLC v Gee Hong Lee, 25 Misc 3d 131[A], 2009 NY Slip Op 52141[U] [App Term, 1st Dept 2009]). In addition to paying the rent in their own names, respondents claim to have made improvements in the apartment with the consent of petitioner, received a rent credit from petitioner in consideration for the same, and corresponded directly with petitioner concerning maintenance, rent and repair issues in their own names. Thus, on this record, the issue of whether petitioner waived its right to object to respondents' continued occupancy should be resolved at trial, and not on summary judgment (see Park Holding Co. v Power, 161 AD2d at 145).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: January 30, 2019