Lindsay Park Hous. Corp. v Hines

[*1] Lindsay Park Hous. Corp. v Hines 2010 NY Slip Op 50988(U) [27 Misc 3d 140(A)] Decided on June 3, 2010 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 3, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and STEINHARDT, JJ
2008-2105 K C.

Lindsay Park Housing Corp., Appellant,

against

Craig Hines, Respondent, -and- "JOHN DOE" and "JANE DOE", Undertenants.

Appeal from an order of the Civil Court of the City of New York, Kings County (Timmie E. Elsner, J.), dated September 26, 2008. The order, insofar as appealed from as limited by the brief, denied the branch of landlord's motion seeking summary judgment awarding it a final judgment of possession and granted occupant Craig Hines's cross motion to dismiss the petition.

ORDERED that the order, insofar as appealed from, is reversed without costs, the branch of landlord's motion seeking summary judgment awarding landlord a final
judgment of possession is granted, and the cross motion by occupant Craig Hines to dismiss the petition is denied. Execution of the warrant of eviction shall be stayed for 60 days from service of a copy of this order with notice of entry.

Landlord commenced this holdover proceeding to recover possession of a City-assisted Mitchell-Lama apartment from occupant, asserting that the denial of occupant's succession rights application had been upheld by the Department of Housing Preservation and Development. Upon a motion by landlord seeking, among other things, summary judgment awarding it a final judgment of possession, and a cross motion by occupant to dismiss the petition, the Civil Court denied landlord's motion and granted occupant's cross motion, finding that occupant had been afforded tenancy rights by landlord housing company subsequent to the denial of his succession rights application. We disagree, and thus reverse.

Notwithstanding the almost eight-year delay between the issuance of the certificate of eviction determining that occupant does not have succession rights to the apartment and landlord's commencement of the instant holdover proceeding, and notwithstanding landlord's acceptance of rent and annual income certifications from occupant in the interim period and its discontinuance of an earlier holdover proceeding, the certificate of eviction remains valid. Contrary to the Civil Court's ruling, a housing company cannot grant Mitchell-Lama tenancy rights by estoppel, laches or waiver (see Matter of Schorr v New York City Dept. of Hous. [*2]Preserv. & Dev., 10 NY3d 776 [2008]; Starrett City, Inc. v Smith, 25 Misc 3d 42 [App Term, 2d, 11th & 13th Jud Dists 2009]; Gouverneur Gardens Hous. Corp v Belmlinsky, 23 Misc 3d 126[A], 2009 NY Slip Op 50534[U] [App Term, 1st Dept 2009]). Nor is there any merit to occupant's contention that the proceeding is barred by the statute of limitations, for occupant's remaining in the Mitchell-Lama apartment is a continuing wrong that "is not referable exclusively to the day the original wrong was committed" (Kaymakcian v Board of Mgrs. of Charles House Condominium, 49 AD3d 407 [2008] [internal quotation marks omitted]), and
the cause of action accrues anew each day (see 1050 Tenants Corp. v Lapidus, 289 AD2d 145 [2001]). Accordingly, the Civil Court's order is reversed insofar as appealed from, the branch of landlord's motion seeking summary judgment awarding it a final judgment of possession is granted and occupant's cross motion to dismiss the petition is denied.

Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: June 03, 2010