Rockville Ctr. Hous. Auth. v Whitfield

[*1] Rockville Ctr. Hous. Auth. v Whitfield 2015 NY Slip Op 51245(U) Decided on August 6, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 6, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : IANNACCI, J.P., TOLBERT and CONNOLLY, JJ.
2014-519 N C

Rockville Centre Housing Authority, Respondent,

against

Cheana L. Whitfield, Appellant, CHARLES SULLINS, Tenant, -and- "JOHN DOE" and "JANE DOE," Undertenants.

Appeal from (1) an order of the District Court of Nassau County, First District (Colin F. O'Donnell, J.), dated September 26, 2012, and (2) an order of the same court (Scott Fairgrieve, J.; op 43 Misc 3d 310) dated January 7, 2014, deemed from a final judgment of the same court (Eric Bjorneby, J.) entered January 15, 2014 (see CPLR 5512 [a]). The order dated September 26, 2012 denied tenant Cheana L. Whitfield's motion to dismiss the petition in a holdover summary proceeding. The final judgment, entered pursuant to the January 7, 2014 order granting landlord's motion for summary judgment, awarded possession to landlord.

ORDERED that the appeal from the order dated September 26, 2012 is dismissed, as the right of direct appeal therefrom terminated with the entry of the final judgment (see Matter of Aho, 39 NY2d 241, 248 [1976]); and it is further,

ORDERED that the final judgment is reversed, without costs, the order granting landlord's motion for summary judgment is vacated, landlord's motion is denied, and the matter is remitted to the District Court for all further proceedings.

In this holdover proceeding, landlord seeks to recover possession of the subject apartment based upon criminal activity allegedly engaged in by a member of tenants' household. The District Court denied a motion by Cheana L. Whitfield (tenant) to dismiss the petition and subsequently granted landlord's motion for summary judgment. While tenant appealed from both orders, the arguments in her brief are addressed only to the order granting landlord's motion for summary judgment. Tenant contends, among other things, that landlord did not submit sufficient proof that any criminal activity had taken place.

Pursuant to the lease, "[a]ny single act of criminal activity (as defined herein) by any [*2]tenant, member of a tenant's household or guest, within the community or Unit shall constitutes [sic] grounds for termination of a lease." Here, the proof submitted by landlord—an unsworn letter signed by an Assistant United States Attorney and apparently submitted to a federal judge prior to a conference, which lists the charges against tenant's household member and sets forth the allegations supporting the charges—is insufficient to demonstrate, as a matter of law, that tenant's household member had engaged in prohibited criminal activity. Thus, landlord's motion for summary judgment should have been denied.

Accordingly, the final judgment is reversed, the order granting landlord's motion for summary judgment is vacated, landlord's motion is denied, and the matter is remitted to the District Court for all further proceedings.

Iannacci, J.P., Tolbert and Connolly, JJ., concur.

Decision Date: August 06, 2015