Petitioner appeals from that portion of an order of the Civil Court, New York County (Peter M. Wendt, J.), dated October 12, 2005, which denied its motion for summary judgment on the holdover petition and denied, in part, its motion to dismiss the affirmative defenses asserted by respondent Santos. Respondent Santos cross-appeals from so much of the aforesaid order as denied his cross motion for "reconsideration" of a prior order which, inter alia, denied his motion for summary judgment dismissing the petition.

PER CURIAM:
Order (Peter M. Wendt, J.), dated October 12, 2005, modified to grant petitioner's motion to dismiss the remaining affirmative defenses asserted by respondent Santos and for summary judgment of possession; as modified, order affirmed, with $10 costs payable to petitioner. Issuance of the warrant of eviction shall be stayed for 30 days from the service of a copy of this order with notice of entry.

Respondent Santos, the son of the deceased stabilized tenant, failed to raise an issue of [*2]fact with respect to his proffered succession defense. While respondent contends that tenant permanently vacated the subject East 96th Street apartment premises in June 1995 when he (tenant)relocated to Florida, that claim is belied by record evidence conclusively showing that tenant thereafter retained substantial ties to the Manhattan apartment. In this regard, respondent acknowledged in his own deposition testimony that tenant initially moved to Florida solely on a trial basis ("he was just going to test it out"); that tenant continued to return to the Manhattan apartment during "vacations," spending roughly six months each year "over
here" until at least March of 2000; and that a series of renewal leases, extending through November 2004, were submitted to the landlord, leases which listed a single tenant (respondent's father) and were either personally executed by the father or bore his forged signature. Inasmuch as the substantial record now before us does not permit a finding that tenant permanently vacated the apartment premises prior to his death in April 2004, and there being no showing that respondent "resided with the tenant" in the subject apartment (Rent Stabilization Code [9 NYCRR] § 2523.5[b][1]) during the two-year period immediately preceding the tenant's death, respondent's succession claim must fail (see 360 W. 55th St. L.P. v Anvar, 13 Misc 3d 7 [2006]). Respondent's remaining affirmative defenses, including those based upon waiver and laches, are similarly lacking in merit.
This constitutes the decision and order of the court.
Decision Date: October 18, 2006