12 E. 86th St. LLC v Brenner

[*1] 12 E. 86th St. LLC v Brenner 2019 NY Slip Op 50622(U) Decided on April 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 30, 2019
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Ling-Cohan, J.P., Gonzalez, Cooper, JJ.
570428/18

12 East 86th Street LLC, Petitioner-Landlord-Respondent,

against

Lois Brenner, Respondent-Tenant-Respondent.

Landlord appeals from an order of the Civil Court of the City of New York, New York County (Daniele Chinea, J.), dated June 27, 2018, which denied its motion to dismiss tenant's affirmative defenses and for summary judgment of possession in a holdover summary proceeding.

Per Curiam.

Order (Daniele Chinea, J.), dated June 27, 2018, affirmed, with $10 costs.

We agree that landlord's possessory claim, based upon allegations that tenant engaged in rent profiteering with respect to the rent stabilized apartment here at issue, should be decided at a plenary trial, and not on summary judgment (see 13775 Realty, LLC v Foglino, 51 Misc 3d 126[A], 2016 NY Slip Op 50335[U] [App Term, 1st Dept. 2016]; 335-7 LLC v Steele, 43 Misc 3d 144[A], 2014 NY Slip Op 50891[U] [App Term, 1st Dept 2014]). The present record raises, but does not resolve, several mixed questions of law and fact, including whether the nature and frequency of the stabilized tenant's rental of space in her apartment on a short term basis to transient individuals constituted commercialization of the premises and profiteering, which is an incurable violation (see Aurora Assoc. LLC v Hennen, 157 AD3d 608, 609 [2018]; 498 W. End Ave. LLC v Reynolds, 62 Misc 3d 136[A], 2018 NY Slip Op 51943[U] [App Term, 1st Dept 2018]; cf. Goldstein v Lipetz, 150 AD3d 562 [2017], appeal dismissed 30 NY3d 1009 [2017]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

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