[*1]
75th St. Props. v Debs
2004 NY Slip Op 50060(U)
Decided on February 11, 2004
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This opinion is uncorrected and will not be published in the Official Reports.


Decided on February 11, 2004
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT:
HON. WILLIAM P. McCOOE, J.P.
HON. WILLIAM J. DAVIS
HON. MARTIN SCHOENFELD, Justices.
570467/03

75TH STREET PROPERTIES, LLC, Petitioner-Landlord-Appellant,

against

CLAUDE DEBS & VIOLAINE GALLAND, 166 West 75th Street Apts. 1214-1215-1216 New York, N.Y. 10023, Respondents-Tenants-Respondents, -and- CLOENE RECYCLED GLASS JEWELRY, NWSI INCORPORATED (NATIONAL WOMEN'S SOCIETY FOR INNOVATION), JUSTIN KENSINGER, DR. DUCHENES, JOHN DOE and JANE DOE, Respondents-Undertenants.


Landlord appeals from an order of the Civil Court, New York County, dated June 10, 2003 (Ernest J. Cavallo, J.), insofar as it denied its motion for partial summary judgment dismissing tenants' affirmative defense. [*2]


PER CURIAM:

Order dated June 10, 2003 (Ernest J. Cavallo, J.) affirmed, with $10 costs.

Civil Court correctly denied landlord's motion for partial summary judgment in this holdover summary proceeding, since there is a genuine dispute as to tenants' primary residence in the single room occupancy premises. Opposing landlord's claim that they allowed others to occupy some of the individual units leased to them, tenants submitted sufficient evidence of their connection to these rooms to raise a triable issue that they maintain their primary residence in all the space (see, e.g., Sharp v. Melendez, 139 AD2d 262). The conflict as to whether tenants use the units in question as a combined primary residence should be resolved at trial, and not on summary judgment (see, West 15th St. Assocs. v Sassoonian, 156 AD2d 137; Kamvan Co. v Rammel, 132 Misc 2d 909).

This constitutes the decision and order of the court.